by Richard Prior
Staff Writer
During his talk last week at Florida Coastal School of Law, U.S. Attorney Paul Perez tackled a recent U.S. Supreme Court decision that some legal observers fear “tolls the death knell of the federal sentencing guidelines.”
“It could be that drastic,” said Perez, speaking at the Law Issues 2004 Forum. “There’s enough language in the Blakely decision to indicate the federal sentencing guidelines would be found to be unconstitutional.”
With its June 24 decision in Blakely vs. Washington, the Supreme Court cast doubts on the validity of sentences that have been “enhanced” by issues not raised at trial.
In 1998, Ralph Howard Blakely Jr. abducted his estranged wife from their home in Grant County, Wash., bound her with duct tape and forced her at knifepoint to get into a wooden box in the bed of his pickup truck.
Blakely, who had been diagnosed with psychological and personality disorders, then ordered their 13-year-old son to follow him in another car. He threatened to harm his wife with a shotgun if their son didn’t obey him.
The son eventually escaped during a gasoline stop; Blakely continued to Montana, where he was arrested after a friend called police.
Blakely was charged with two counts of first-degree kidnapping involving domestic violence. A plea agreement reduced the charges to one count of second-degree kidnapping involving domestic violence and use of a firearm, and one count of second-degree assault involving domestic violence.
The statutory maximum for second-degree kidnapping was 10 years. According to Washington’s sentencing rules, the sentence for assault would run concurrently.
The presumptive sentence for kidnapping was 49 to 53 months. The prosecutor recommended a 53-month sentence. The court, however, found that Blakely had behaved with “deliberate cruelty” — a specified aggravating factor — and sentenced him to 90 months.
The U.S. Supreme Court’s 5-4 decision said Blakely’s 6th Amendment right to a jury trial had been violated by the sentence. With the exception of prior convictions, the Court ruled, any fact used to enhance a sentence either must be decided by a jury “beyond a reasonable doubt” or admitted by the defendant.
“We have to consider whether the evidence for that enhancement is appropriate to raise during the guilt phase or the sentencing phase,” Perez said. “One of the effects of Blakely may be the brave new world of bifurcated trials — one proceeding to determine guilt and another for the sentence. ...
“If that is what happens, it’s going to be very time-consuming and expensive.”
Perez told the forum how the guidelines have been used since 1984 when the Sentencing Reform Act was approved.
“The bottom line is the guidelines were created to cure what was perceived as a disparity in sentencings for similar offenses and similar defendants around the country,” he said.
Practitioners actually suspected this might be coming after the Court issued its 2000 decision in Apprendi vs. New Jersey. The Court at that time said “(o)ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
The majority opinion in Blakely, written by Justice Antonin Scalia, “stresses that Apprendi is to be taken seriously,” according to an analysis written for the National Association of Criminal Defense Lawyers:
“... the decision expanded Apprendi from the limited pool of cases where the statutory maximum is affected to the near-limitless universe where higher guideline sentences come into play by virtue of relevant conduct.
“It appears that this holding tolls the death knell of the federal sentencing guidelines.”
Additional guidance may come out of two expedited cases that the Court is scheduled to hear today, during the opening of the autumn docket.
One involves a Wisconsin man whose conviction was overturned on appeal because his judge determined the amount of the drugs involved was greater than what was presented at trial.
In the other, a drug distribution case tried in Maine, the government appealed when the judge applied the Blakely ruling and sentenced the defendant to five years instead of 15.