BLAKELY v. WASHINGTON

The jails and prisons are buzzing with excitement. "Did you hear, the Supreme Court through out the federal sentencing guidelines. All of our cases are going to be thrown out!"

Well not so fast, the news is good. The news is very, very good but the Supreme Court has not issued a "Get Out of Jail Free" card to every inmate.

BLAKELY PROBABLY REQUIRES RESENTENCING FOR A MAJORITY OF CONVICTED INMATES. Here is why.

What Blakely does, is close the circle that started with Apprendi and makes it 100% clear:

Any factor which increases a prisoner’s sentence (except for prior convictions) must be determined by a jury.

For federal and state prisoners who have gone to trial and received anything except the absolute minimum sentence this means that they will have to be resentenced to the lowest possible term.

The only exceptions are:

1. If prior convictions are the basis for the increased sentence.

2. If the jury actually considered and directly made findings as to the facts

leading to the enhanced sentence.

WARNING: There are some counter arguments. Prosecutors will argue

that if evidence of an enhancing factor was presented to the jury, there

was an implicit finding by the jury which would therefore allow the

enhancement.

Here is the key statement by the U.S. Supreme Court in Blakely:

This is quite clear. The judge can’t make factual findings about what the person did. If the jury didn’t make the finding, the judge can’t make the finding.

Here are some specific examples of how Blakely works.

A person is convicted of selling a large quantity of narcotics. Under the federal rules the weight of the drugs is the main factor in setting the punishment. There is a chart that lists the weights of various types of drugs and assigns a corresponding offense level. The higher weight, the higher the offense level, the higher the penalty.

So if a person sold 4 kilograms of cocaine he is at a level 30. That is simple mathematics. Under Apprendi ONLY THE JURY CAN FIND THE WEIGHT. However, prosecutors have been correcting this failure since the Apprendi case was decided so only older cases need to be brought back for resentencing due to a failure of the jury to find the amount of drugs.

Blakely goes a step further. All factors enhancing the sentence must be found by the jury.

The federal sentencing guidelines allow the judge to increase that level 30 based upon how the offense was committed. If the judge thinks that the person was a leader or organizer of the drug offense the level 30 gets increased by 4 and becomes a level 34.

This is a major change. For a first time offender a level 30 carries a sentence of 97-121 months in prison. For a first time offender a level 34 carries a sentence of 151-188 months about five extra years!

If you have been been sentenced to those five extra years put down this paper and do a celebration dance - Blakely is cutting five years from your sentence!

Tax evasion is another example of where Blakely would be of great interest. Just like with drug cases, Apprendi has already made it clear that in tax evasion cases the amount of the loss has to be alleged by the government and proven at trial. Specific findings (or at least implied findings) have to be made by the jury.

Tax evasion without a loss is only a level 6 which is a probation level (0 - 6 months for first offenders).

As the amount of loss to the tax collector increases so does the offense level.

Now where Blakely goes even further than Apprendi is at the point where "Specific Offense Characteristics" need to be considered by the judge.

Even after Apprendi factors such as whether the Tax Evasion involved "sophisticated means" was being left to judges. For Tax Evasion, this is a big deal because here is what the Sentencing Guideline rules say:

resulting offense level is less than level 12, increase to level 12.

Remember the first time offender who caused the government no loss. He was going to get a level 6 and Zero to Six months.

Not if the offense was done by "sophisticated means". That bumps him up to level 12 which is a 10-16 month sentence.

Under Blakely, it is the jury and not the judge who decides if "sophisticated means" were used. If a person was sentenced to 10-16 months due to a judge’s finding that he used sophisticated means, he gets resentenced.

The same applies to money laundering where "sophisticated means" cause a 2 point bump.

State cases are equally subject to Blakely. In fact, Blakely involved a State of Washington sentencing scheme where the punishment was increased if the judge thought that the defendant acted "with deliberate cruelty". This was held unconstitutional because the judge and not the jury made the call. The maximum sentence that the judge can impose is the highest sentence which is based upon what the jury found. Nothing that the judge finds by himself can be considered.

Here is what the U.S. Supreme Court said:

So in Washington, the judge’s finding of "deliberate cruelty" was an additional fact and the increased sentence based upon that additional fact was unconstitutional.

It would seem that California’s 3 prong sentencing system of low, mid and high term may be invalid for the same reason.

The California state judge has factors which he decides in choosing among these sentences. Many of these factors are related to the crime, the victim and would seem to be right in line with the Blakely ruling.

Any state inmate who was sentenced to anything other than the low term must demand to be resentenced.

Write to your former lawyer.

File your own petition for habeas corpus.

Hire a new lawyer. (If you’re in Washington State, why not contact

Jeffrey Fisher, the attorney who won this case!)

Write to the trial judge and ask to have a lawyer appointed.

This is a difficult question. There is an argument that you had a right to know that your waiver of a jury trial applied not only to the elements of the crime but to the sentencing elements as well.

Post-Apprendi this seemed quite clear to many of us. This is an open question and will still have to be litigated.