Puerto Rico Association of Criminal Defense Lawyers

Another Lesson Plan from Judge Gertner

In another of her impressive opinions on sentencing issues, Judge Gertner has issued a Sentencing Memorandum in United States v. Malouf, No. 03-cr-10298-NG (D.Mass. June 14, 2005).  The first few paragraphs read as follows:

This case is about the interpretation of an important federal drug distribution statute, 21 U.S.C. § 841, under which the defendant Michael Malouf (“Malouf”) was indicted. Section 841 creates a staircase of sentences, with steep increases at each step – statutory maximums up to life imprisonment and mandatory minimums that increase from five, to ten, and to twenty years. Where the defendant is situated on this sentencing staircase depends upon the type and quantity of drugs involved, whether the defendant has a prior felony drug conviction, and whether death or bodily injury resulted from the offense.

The interpretation of the statute is complicated by recent changes in Supreme Court sentencing law, embodied by Blakely v. Washington, 124 S. Ct. 2531 (2004), United States v. Booker, 125 S. Ct. 738 (2005), and Shepard v. United States, 125 S. Ct. 1254 (2005). This law substantially impacts the application of each factor in the statute - in particular, prior convictions (implicating Almendarez-Torres v. United States, 523 U.S. 224 (1998)), bodily injury (implicating Jones v. United States, 526 U.S. 227 (1999), and drug quantity - that increases the statutory maximum penalty (implicating Apprendi v. New Jersey, 530 U.S. 466 (2000)), and/or the mandatory minimums (implicating Harris v. United States, 536 U.S. 545 (2002)). The question is whether, as the Supreme Court’s decisional law has changed, the interpretation of 21 U.S.C. § 841 should likewise change.

Specifically, the sentencing of Michael Malouf raises the following questions: (1) Do the drug quantities outlined in 21 U.S.C. § 841 comprise elements of offenses, or sentencing factors? If the former, the relevant case is Apprendi, a jury trial is required and the standard of proof is beyond a reasonable doubt; if the latter, it is Harris, drug quantity can be determined by a judge, and the standard is a fair preponderance of the evidence. (2) What is the continued efficacy of Harris in the light of the Court’s rulings in Blakely and Booker? (3) What is a district court to do when the First Circuit’s interpretation of § 841 relies on Supreme Court precedent which predates Blakely and Booker? (4) In the alternative, however the facts are characterized (as sentencing factors or elements), where facts have a significant, indeed determinative impact, does the Due Process Clause of the Fifth Amendment require the application of the beyond a reasonable doubt standard?

As you can tell, the Malouf Sentencing Memorandum covers a lot of ground, and I strongly recommend you read it all.

Blakely, Booker & Supervised Release Revocation

In United States v. Work, No. 04-2172 (1st Cir. June 3, 2005) defendant-appellant argued "that the Sixth Amendment, as interpreted in Blakely v. Washington, 124 S. Ct. 2531 (2004), applies to the revocation of supervised release and the consequent imposition of additional prison time." More to the point, he argued that "when such a revocation leads to additional imprisonment above and beyond the top of the original guideline sentencing range, the facts underlying the revocation must be proven to a jury beyond a reasonable doubt."

The First Circuit rejected this argument, concluding that "appellant's argument is doubly flawed: it is premised not only on a misunderstanding of supervised release but also on an attempted importation of Sixth Amendment jury trial rights into an area in which they do not belong."

The difficulty with the appellant's argument is that this type of judicial factfinding does not pose a Sixth Amendment problem. The law is clear that once the original sentence has been imposed in a criminal case, further proceedings with respect to that sentence are not subject to Sixth Amendment protections. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (holding that the "revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply"); see also Johnson v. United States, 529 U.S. 694, 700 (2000) (dealing with revocation of supervised release); Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973) (dealing with revocation of probation). To be sure, the conversion of a less restrictive form of punishment, such as supervised release, to a harsher one, such as imprisonment, does entail a deprivation of liberty (albeit conditional liberty). As such, the accused must be accorded a suitable panoply of due process protections. See United States v. Correa-Torres, 326 F.3d 18, 22 (1st Cir. 2003); United States v. Sanchez, 225 F.3d 172, 175 (2d Cir. 2000). The process that is due, however, does not encompass the full sweep of the Sixth Amendment's prophylaxis (such as a right to a jury trial on the facts of the alleged violation). See Morrissey, 408 U.S. at 489; United States v. Czajak, 909 F.2d 20, 24 (1st Cir. 1990). Nor are facts required to be proven beyond a reasonable doubt in such a proceeding. See DeWitt v. Ventetoulo, 6 F.3d 32, 37 (1st Cir. 1993). The appellant's argument that he was constitutionally entitled to such protections collapses under the weight of these authorities.

By like token, the district court did not commit Booker error in imposing the incremental prison term. While the Sixth Amendment does not apply in revocation hearings, a Booker error can occur even absent a Sixth Amendment violation if the sentencing court treats the federal sentencing guidelines as mandatory. See Antonakopoulos, 399 F.3d at 75. That being said, the portions of the sentencing guidelines dealing with revocation of supervised release are merely policy statements. See USSG §§7B1.1-7B1.5. Even before Booker, those guidelines were deemed advisory rather than mandatory. See United States v. O'Neil, 11 F.3d 292, 301 n.11 (1st Cir. 1993). They remain advisory to this date. Consequently, resort to them cannot constitute Booker error. See United States v. González-Mercardo, 402 F.3d 294, 303 (1st Cir. 2005) (describing nature of Booker error); Antonakopoulos, 399 F.3d at 75 (same).

While the Court had earlier in the opinion remarked that appellant's insistence in not attacking the fact that his sentence on supervised release revocation was rendered under a mandatory guidelines system may have fatally flawed his appeal, it is clear that the appeal was doomed anyway, given the holding that the guidelines dealing with revocation of supervised release are policy statements that were always deemed advisory, even before Booker.

Case posts by Appellate Law & Practice here and Sentencing Law and Policy here.

First Circuit's Leadership Role in Blakely Strikeouts

As noted by Professor Douglas Berman at Sentencing Law & Policy here, with the opinion in United States v. Fraser, 2004 WL 2537410, No. 04-1100 (1st Cir. Nov. 10, 2004), the First Circuit maintained its status "as a leader in affirming convictions over Blakely objections on plain error grounds." No liberals at the First!* The Circuit Judges, who share the Courthouse with the Judges from the District of Massachusetts, must wonder at times whether they are from a different planet.

See also our previous post: Is Pedro Martinez pitching at the First Circuit?

* I hope none of the Circuit Judges takes offense at missing out on being labeled with the "L" word.

Is Pedro Martinez pitching at the First Circuit?

The First Circuit is throwing out left and right all Blakely claims raised for the first time on appeal by applying plain error and even discussing whether the claims have been waived rather than forfeited by not having been raised earlier. Feels as if Pedro Martinez were pitching for the First Circuit.

On Monday, November 1st, 2004 the Circuit issued three opinions dealing blows to appellants' Blakely claims. See United States v. Del Rosario, No. 02-2377 (1st Cir. Nov. 1, 2004), United States v. Martinez-Bermudez, No. 02-2419 (1st Cir. Nov. 1, 2004), and United States v. Stearns, No. 03-2340 (1st Cir. Nov. 1, 2004).

And today another Blakely claim struck out in United States v. Coyne, No. 03-2013 (1st Cir. Nov. 4, 2004) (not for publication).

This is certainly not Ameline-land.

U.S. v. Perez, Crim. No. 04-86-P-H (D.Me. October 5, 2004) - Judge D. Brock Hornby

In a recently issued Procedural Order in U.S. v. Ramon Perez, Crim. No. 04-86-P-H,(D.Me. October 5, 2004), U.S. District Judge D. Brock Hornby, refused to accept a defendant's guilty plea when defendant, through counsel, informed that he wanted to plead guilty to the conspiracy charge, "but wanted a jury trial as to the drug quantities and on the scope of the conspiracy. [n.2]" We quote practically the totality of the opinion, since we find it deals with day-to-day problems confronting each one of us practicing before the U.S. District Courts.

The Superseding Indictment charges this defendant with being a member of a conspiracy [n.1] involving at least five kilograms of cocaine. That quantity activates the section of the narcotics statute with the highest statutory drug sentencing category, 21 U.S.C. § 841(b)(1)(A). In a “Sentencing Allegation,” the Superseding Indictment also charges that this defendant is “accountable for at least 15 kilograms of cocaine.” That quantity increases the United States Sentencing Guideline (“Guideline”) sentencing range and is also designed to comply with the First Circuit’s requirement in United States v. Colon-Solis that in a drug conspiracy case, “any sentence imposed must be accompanied by particularized findings as to the drug amounts attributable to, or foreseeable by, the appellant.” 354 F.3d 101, 104 (1st Cir. 2004).

Judge Hornby goes on to discuss  the pre-Apprendi situation, and compares it with the post-Apprendi  world, and then the still uncertain post-Blakely world.

Before Apprendi v. New Jersey, 530 U.S. 466 (2000), the sentencing judge determined the applicable drug quantities (and thereby the statutory maximum and minimum penalty and the guideline range) whether a conviction was by a jury or by a guilty plea. In other words, before Apprendi I could probably have accepted a partial plea somewhat along the lines the defendant proposes, but I as the judge would have made the determinations about drug quantity and its impact on the sentence.

After Apprendi, in cases that went to trial, the judge submitted the question of conspiracy drug quantity to the jury (to determine beyond a reasonable doubt). The jury’s answer determined the applicable statutory maximum. United States v. Perez-Ruiz, 353 F.3d 1, 15 (1st Cir. 2003). But the judge still determined (on his/her own and by a preponderance of the evidence) the drug quantity pertinent to the individual defendant and thus the applicability of any mandatory minimum sentence and the governing guideline range (within the statutory maximum). See id. For defendants who pleaded guilty, the sentencing judge alone determined all those issues, except the statutory cap, which was controlled by what the Indictment or Information charged. See United States v. McLean, 287 F.3d 127, 133 (2d Cir. 2002). Although Apprendi resulted in verdict questions to juries about drug quantity, such questions generally were asked only if the jury had found guilt on the underlying offense. I have been unable to find any case where a defendant was permitted to plead guilty and then proceed to jury trial on drug quantity alone. [My Comment: Don't Booker (7th Cir.) and Ameline (9th Cir.) carry any weight here? Both Courts left open the possibility of sentencing juries.]

As a result of Blakely v. Washington, 124 S. Ct. 2531 (2004), the active judges in this District have ruled that a defendant is entitled to a jury trial and proof beyond a reasonable doubt as to all sentence-enhancing factors except criminal history. But there remains widespread disagreement and uncertainty across the country on what Blakely demands for federal sentences. Just yesterday the United States Supreme Court heard oral argument in a case from this District, United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-105), and another from the Seventh Circuit, United States v. Booker, 375 F.3d 508 (7th Cir. 2004), cert. granted, 73 U.S.L.W. 3073, 3074 (U.S. Aug. 2, 2004) (No. 04-104). Everyone hopes that early Supreme Court decisions in these two cases will clear up the confusion engendered by Blakely. In the meantime, however, this defendant has said through counsel that he does not want to await the Supreme Court rulings before proceeding. Because he is entitled to proceed without delay, see 18 U.S.C. § 3161, I must determine what procedure to follow in light of Blakely. I have been unable to find any cases directly on point. I therefore work from basic principles.

Since “[a]n indictment must set forth each element of the crime that it charges,” Almendarez-Torres v. United States, 523 U.S. 224, 228 (1998), a guilty plea traditionally admitted all the “elements” of the crime. A defendant had to plead guilty to the entire offense or not at all, and a court could not, over the government’s objection, accept a plea to a lesser included offense. United States v. Edmonson, 792 F.2d 1492, 1498 (9th Cir. 1986). The defendant here says that pleading guilty to conspiracy covers the “elements” in this case. I do not believe that “scope” of the conspiracy can be extracted from the elements of the offense as that term has been used conventionally and therefore I would not entertain a partial plea that contested the scope of the conspiracy. [n. 3] Drug quantity is more difficult. Before Apprendi we were certain that drug quantity was merely a sentencing issue, not an essential part of the conviction. See, e.g., United States v. Lindia, 82 F.3d 1154, 1160-61 (1st Cir. 1996). Apprendi taught us that where drug quantity elevated the statutory maximum sentence, it had to be proven beyond a reasonable doubt to the jury. But judges could still make all other drug quantity determinations at sentencing. See, e.g., United States v. Lopez-Lopez, 282 F.3d 1, 22 (1st Cir. 2002). In the post-Blakely world, however, all sentence-enhancing factors (other than criminal history) must be proven to a jury beyond a reasonable doubt. Have they thereby become “elements of the offense”? Since drug quantity now must be proven to a jury beyond a reasonable doubt regardless of what it is called, the old debate over whether it is an “element” seems to have lost significance. [n. 4] It certainly does not help resolve the issue before me. [n.5] Therefore, I consider other factors.

It will be difficult for the government to try the issues of conspiracy scope and drug quantity without simultaneously presenting a good deal of evidence about the conspiracy itself. Permitting a plea of guilty to the conspiracy, but not the scope or quantity, therefore, will produce disputes at the resulting trial over what is material versus what is unduly prejudicial evidence. [n.6] The appellate cases generally have said that defendants cannot stipulate their way out of the government’s right to try a case the way it was charged. See Old Chief v. United States, 519 U.S. 172, 186-87, 190-92 (reiterating standard rule, but holding that the defendant’s legal status as a felon is different and that the government can be compelled to accept such a stipulation). This background counsels in favor of sustaining the government’s objection to the partial plea as it affects both scope and drug quantity.

I cannot see any prejudice to the defendant in declining his partial plea. The primary benefit to the defendant in the proposed partial plea is the possibility of obtaining a reduced sentence for acceptance of responsibility under Guideline 3E1.1. That of course will depend on what the jury and I [n.7] conclude about relevant conduct after trial. But if the defendant elects at trial to admit the conspiracy (as he proposes to do in his partial guilty plea), and contests only the drug quantity and scope of the conspiracy before the jury, he should be able to make the same arguments about acceptance of responsibility to me at sentencing. [n.8] True, there may be somewhat more work for his lawyer in preparing for a broader trial (practically speaking the dimensions of the trial will probably not vary a lot) but, since the defendant has a court-appointed lawyer, this factor is an expense to the taxpayer, not the defendant.

After all is said and done, a defendant has a right to a jury trial, but he has no absolute right to plead guilty. Santobello v. New York, 404 U.S. 257, 261-62 (1971). “A court may reject a plea in exercise of sound judicial discretion.” Id. at 262. I conclude that the defendant cannot enter a partial plea of guilty while reserving the issue of conspiracy scope for a jury trial. The ability to reserve drug quantity is a closer question. But I also conclude in the uncertain state of post-Blakely federal sentencing that the prudent course is to reject the partial plea on that score as well.

[n. 1] A conspiracy to possess and possess with intent to distribute.

[n. 2] This is specifically not a case where the defendant is willing to plead guilty to the offense and stipulate that the judge may determine the relevant sentencing facts, a possibility suggested by Blakely v. Washington, 124 S. Ct. 2531, 2541 (2004). The defendant also wants to go to trial on venue, but a guilty plea would waive his right to jury trial on venue. See United States v. Calderon, 243 F.3d 587, 590 (2d Cir. 2001). Since I am rejecting the plea of guilty, however, the defendant may continue to press his venue challenge at trial.

[n.3] The Superseding Indictment does not allege any particular scope for the conspiracy beyond the quantity allegations. Presumably the defendant knows what the government will state in its prosecution version for a factual basis for the plea at any Rule 11 proceeding and is unwilling to agree to the government’s version.

[n.4] As recently as Jones v. United States, 526 U.S. 227, 232 (1999), the Court said: “Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”

[n.5] The debate creates certain ironies. The government takes the position that sentence - enhancing factors are not “elements” because nationally the government has argued that Blakely does not apply to federal sentencing. But it wants me not to accept the partial plea, an argument that would be easier to make by calling them elements that the defendant must admit to in order to plead guilty. The government has carefully refrained from doing so. The defendant faces the same dilemma in reverse.

[n.6] It will also save only minimal court time at best.

[n.7] Blakely does not seem to restrict the judge’s role in downward adjustments of the Guideline range such as 3E1.1 permits.

[n.8] It is already too late to get the third point under 3E1.1(b) because of the late stage of the proceedings (the jury has been empaneled).

Now that the argument as to whether a particular fact that enhances the guideline offense level is an element, a sentencing factor, or Mary Jane, is irrelevant, as we are dealing at worst with functional equivalents of elements of aggravated offenses as we go up the offense level, we should all be insisting that with indictments that charge merely "in excess of 5 kilograms" but offer no specific amount, the indictments are insufficient as a matter of law to submit the issue to the jury beyond the 5 kilograms, i.e., that any higher amount had to be specifically alleged, since we are no longer dealing with the post-Apprendi and pre-Blakely situation in which the sole concern was whether the indictment charged and the jury found an amount to trigger a maximum of 20 or 40 years or life. Instead each offense level in the drug quantity table is an, if you will, aggravated version of the lower offense, and had to be specifically charged. Just some food for thought. Any comments will be greatly appreciated.

If you want a copy of the PDF file, please e-mail PRACDL at our new e-mail address link at sidebar. We hope to soon be moving to a sytem where we can actually upload all our own PDF's files and where we can actually categorize them. Until then, please be patient.

More Blakely Plain Error Analysis by 1st Cir. in U.S. v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004)

The First Circuit keeps fidgeting with Almendarez-Torres. In United States v. Cordoza-Estrada, No. 03-2666 (1st Cir. Sept. 29, 2004) the First Circuit also handled a Blakely claim which involved the continuing vitality of Almendarez-Torres.

Having plead guilty to a one count information, Cordoza-Estrada was convicted of re-entering the United States after being deported, in violation of 8 U.S.C. §§ 1326(a) and 1326(b)(2), and sentenced to eighteen months of imprisonment and three years of supervised release.

He appealed his sentence, arguing that his prior conviction for a simple assault was a misdemeanor under New Hampshire law and should not have been treated as an “aggravated felony” under § 1326(b)(2) or U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 2L1.2(b)(1)(C) (Nov. 2002). He also argued that his sentence was invalid under Blakely v. Washington, 124 S.Ct. 2531 (2004).

Moving on to the Blakely claim,

The day before oral argument, Appellant filed a letter pursuant to Local Rule 28(j) arguing that the sentence was unlawful on the ground that Blakely v. Washington, 124 S. Ct. 2531 (2004), and Apprendi v. New Jersey, 530 U.S. 466 (2000), undermine the Supreme Court’s ruling in Almendarez-Torres v. United States, 523 U.S. 224, 235 (1998), which held that the prior “aggravated felony” language of 8 U.S.C. § 1326(b)(2) refers to a sentencing enhancement, not to an element of the offense. The letter also advocated that Appellant should be resentenced because post-Blakely, the Federal Guidelines are merely advisory.

Since Appellant’s argument depends upon a decision that did not exist at the time of briefing, a 28(j) letter is a perfectly appropriate avenue by which to present it –- such letters are intended to provide the court with new authority. See Freeman v. Barnhart, 274 F.3d 606, 609 (1st Cir. 2001) (accepting Rule 28(j) letter making new arguments where they could not have been made before and the relevant statute permitted court to order new evidence taken at any time). The Government does not argue that the issue was raised in an untimely manner and has filed a Rule 28(j) letter in response.

The parties agree that the standard is plain error. Under the plain error test, an appellant “‘bears the burden of demonstrating (1) an error, (2) that is plain, (3) that affects substantial rights (i.e., the error was not harmless), and (4) that seriously undermines the fairness, integrity, and public reputation of judicial proceedings.’” United States v. McCormack, 371 F.3d 22, 29 (1st Cir. 2004) (quoting United States v. Fazal-Ur-Raheman-Fazal, 355 F.3d 40, 48 (1st Cir. 2004)).

In Apprendi, the Supreme Court stated: “Other 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.” 530 U.S. at 490 (emphasis added). Blakely did not disturb the distinction between “the fact of a prior conviction” and other facts that “increase the penalty for a crime beyond a prescribed maximum.” Blakely, 124 S. Ct. at 2536 (quoting and applying the Apprendi rule stated above). Accordingly, there was no error in the trial judge’s consideration of the prior conviction. Even if there were such an error, Appellant has failed to demonstrate that it affected substantial rights of his because there is no dispute that he had a conviction. See United States v. Cotton, 535 U.S. 625, 632 (2002) (in a review of an Apprendi error, holding that the “third inquiry usually means that the error must have affected the outcome of the district court’s proceedings”).

Appellant has also launched a broadside attack on the validity of the Sentencing Guidelines under the Sixth Amendment. Even if the Sentencing Guidelines as a whole are ultimately declared invalid, we must decide whether any error in applying them was “plain.” Compare United States v. Duncan, __ F.3d __, 2004 WL 1838020, at *3-*5 (11th Cir. August 18, 2004) (holding that any Blakely error was not “plain” under the plain error standard of review) with United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (holding the contrary).

In determining whether the error was plain, the Supreme Court has explained: “Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal[,] it is enough that an error be ‘plain’ at the time of appellate consideration.”

Johnson v. United States, 520 U.S. 461, 468 (1997). The question of the continuing validity of the Sentencing Guidelines is an issue that has roiled the federal courts, and split circuits. See, e.g., United States v. Booker, 375 F.3d 508 (7th Cir. 2004) (Posner, J.) (holding the Guidelines unconstitutional) (Easterbrook, J., dissenting), cert. granted, ___ S. Ct. ___, 2004 WL 1713654; United States v. Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. Sept. 8, 2004) (en banc) (upholding the Guidelines) (Wilkinson, J., Shedd, J., Widener, J., concurring; Motz, J., Michael, J., Gregory, J., dissenting); United States v. Koch, ___ F.3d ___, 2004 WL 1899930 (6th Cir. Aug. 26, 2004) (en banc) (upholding the Guidelines) (Martin, J., Daughtrey, J., Moore, J., Cole, J., Clay, J., dissenting). Whatever the outcome, the answer is neither plain nor obvious at the time of this appeal. Because the trial judge’s sentence was consistent with precedent, and the current law is unsettled, we conclude that there is no plain error.

Affirmed.

So what exactly does it take to get past the Frist Circuit, other than a writ of certiorari?

U.S. v. Savarese - First Circuit Applies Plain Error to Blakely Claim

      In U.S. v. Savarese, No. 04-1099, 2004 U.S. App. LEXIS 19824 (1st Cir. September 22, 2004), a case involving the interpretation of section 2B3.1 of the U.S. Sentencing Guidelines, which provides for a two-level enhancement of a defendant's offense level if the defendant engaged in carjacking. -see U.S. Sentencing Guidelines Manual § 2B3.1(b)(5)(2003) - the defendant also raised a Blakely claim. While the decision is an issue of first impression on the USSG § 2B3.1(b)(5), and should ber read if for no other reason than that, we refer herein to the Court's handling of the Blakely claim.

[...] However, we conclude here that, even if Blakely is held to apply to the Federal Guidelines, there is no basis for reversal in this case.

The appellant did not raise the jury trial issue in the district court, nor did he request a jury trial with respect to factual issues relating to the sentencing. Thus, we review the district court’s enhancement of Savarese’s sentence for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.”); see also United States v. Cotton, 535 U.S. 625, 631 (2002) (holding that an Apprendi violation can be considered under plain error analysis); United States v. Duncan, ___ F.3d ___, ___, 2004 WL 1838020, at *2 (11th Cir. Aug. 18, 2004) (“[B]ecause Duncan failed to raise a Sixth Amendment argument below, our review is limited to determining whether setting the base offense level based upon the sentencing judge’s finding of cocaine base constitutes plain error in light of the Supreme Court’s holding in Blakely.”); United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004) (“Because Ameline did not object to his sentence on the grounds that the Sentencing Guidelines or the procedures used to determine the material sentencing facts were unconstitutional under Apprendi, or on the ground that the material sentencing facts were not alleged in the indictment, submitted to the jury, or proved beyond a reasonable doubt, we review for plain error.”); United States v. Donnelly, 370 F.3d 87, 92 (1st Cir. 2004) (reviewing a sentencing enhancement for plain error where the defendant failed to address the second element of the enhancement in his objection).

In determining whether an error is plain, the court considers four factors:

[B]efore an appellate court can correct an error not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.

Cotton, 535 U.S. at 631-32 (quoting Johnson v. United States, 520 U.S. 461, 466-67 (1997)) (internal quotation marks, alterations, and citation omitted). We conclude that at least the last of these four requirements has not been satisfied.

One cannot fault the First Circuit, since it is abundantly clear that appellant never raised any objection to any of the facts underlying any of his Blakely claim on appeal.

More from the First Circuit on Blakely - and it's not good

In United States v. Morgan, No. 03-1768 (1st Cir. September 2, 2004) (not for publication), the First Circuit addresses issues of "waiver" and "forfeiture" of claims (in this case a Blakely claim).

Morgan was sentenced before Blakely was decided, and he contested the drug quantity at sentencing. The appeal followed, and Blakely was decided after oral argument. Appellant's counsel submitted a post-argument letter pursuant to Fed. R. App. P. 28(j) seeking additional review of his sentencing in light of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531 (2004).to the Court raising the Blakely claim. The First Circuit recognized that

Blakely could potentially affect the trial court’s sentence in the present case, which was based partially on its own finding holding Morgan responsible for between 80 and 100 kilograms of marijuana as the amount that he could reasonably foresee within the scope of the criminal operation. Blakely raises the possibility that this fact should not have been decided by the judge, but instead needed to have been determined by a jury or admitted by the defendant.

Morgan, slip op. at 14. But the Court then went on to state as follows:

Morgan never raised this Blakely issue at the trial court, in his
original briefs to this court, or in oral argument. Instead, he presented the issue to this court for this first time after oral argument.

When an argument has been waived, no review is possible, unless the court engages in the rare exercise of its power to excuse waiver. But when an argument has merely been forfeited, plain error review may be available. See United States v. Mitchell, 807 F.3d 800, 807 (1st Cir. 1996). Waiver is the intentional relinquishment or abandonment of a right; forfeiture is generally defined as the mere failure to raise an issue in a timely manner. See United States v. Olano, 505 U.S. 725, 733 (1993); United States v. Rodriguez, 311 F.3d 433, 437 (1st Cir. 2002).

The question now is whether plain error review is available in this situation. When a party merely fails to raise an issue in proceedings below but does raise the issue on appeal, we will still review that issue for plain error. See, e.g., United States v. Thurston, 358 F.3d 51, 63 (1st Cir. 2004); United States v. Matos, 328 F.3d 34, 43 (1st Cir. 2003). But this case is a bit different; Morgan neither raised the issue below nor initially in this court. The normal rule is that new issues cannot be raised at all in a rule 28(j) filing, see United States v. Nason, 9 F.3d 155, 163 (1st Cir. 1993). A more difficult question is whether such a rule is appropriate where a party is raising a new issue in response to a potentially crucial Supreme Court decision that issued only after briefing and oral argument were completed. After Apprendi was issued, several defendants filed rule 28(j) letters with this court: we agreed to consider the Apprendi issue, but only on plain error review. See United States v. Baltas, 236 F.3d 27, 41-42 (1st Cir. 2001); United States v. LaFreniere, 236 F.3d 41, 48-50 (1st Cir. 2001).

We need not definitively resolve whether plain error review would be available in this case, because even assuming arguendo that it is, Morgan's Blakely argument could not prevail using such a standard.

In the post-Apprendi world, this court adopted a rule that any such error in sentencing should be held harmless so long as the evidence for the trial judge’s factual findings is overwhelming and no reasonable jury could have disagreed with them. See Sustache-Rivera v. United States, 221 F.3d 8, 18-19 (1st Cir. 2000). This rule does not apply to the present case. The judge’s determination was surely reasonable, but given the convoluted state of the evidence presented at the sentencing hearing, we cannot say the court’s findings were compelled by the evidence.

Plain error review is extremely deferential; errors will be corrected only if (1) . . an error occurred (2) which was clear or obvious and which not only (3) affected [his] substantial rights, but also (4) seriously impaired the fairness, integrity, or public reputation of judicial proceedings.” United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001); see Olano, 505 U.S. at 732-37. Under existing post-Apprendi, pre-Blakely) First Circuit precedent, the judge is empowered in a conspiracy case to determine the exact amount of drugs that a defendant reasonably foresaw, so long as his sentence is no greater than that which could be imposed based on the total quantity of drugs that the jury had found for the conspiracy as a whole. See Derman, 298 F.3d 34, 42-43. Because the trial judge acted in accordance with circuit precedent, we cannot say plain error occurred, and we need not proceed further.

Morgan, slip op., at 14-17. This is one hell of a Catch-22! About the only "positive" thing that one can say for this opinion is that the Court has still opted for a rule that the blind ought not to lead the blind as far as offering "guidance" on Blakely. And, as far as I'm concerned, that is a good thing.

Campbell v. U.S., No. 02-2387 (1st Cir. August, 25, 2004)

In Campbell v. United States, slip op. No. 02-2387 (1st Cir. August 25, 2004) (not for publication), the Court, in denying a Certificate of Appealability to one who had his 2255 motion denied, stated, in part, as follows:

Finally, Campbell is not entitled to a COA to pursue the claim that counsel was ineffective for failing to anticipate the Court's decision in Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004). On appeal, this court held that there was no Apprendi violation because Campbell was sentenced below the statutory maximum of 240 months. See 21 U.S.C. § 841(b)(1)(C). In his § 2255 motion, Campbell argued that appellate counsel should have argued that Apprendi was violated because Campbell's base offense level under the sentencing guidelines was enhanced based on the drug quantity. He has now filed an addendum to his COA memorandum in which he asks that Blakely "be applied in evaluating the arguments which he has placed before the court." Notice of Supplemental Authority, p. 1.

This case does not require us to decide whether Blakely applies to the federal sentencing guidelines or whether it applies retroactively to cases on collateral review. Because Campbell stipulated at trial to a drug quantity that corresponded to the base offense level used to calculate his sentence, he cannot show that he was prejudiced by the failure to charge the specific drug quantity in his indictment. See United States v. Riggs, 347 F.3d 17, 20 (1st Cir. 2003), cert. denied, __ U.S.__, 124 S.Ct. 1095 (2004). Moreover, counsel's failure to anticipate Blakely would not constitute unreasonable performance under Strickland because "First Circuit jurisprudence on this point ha[d] been well established." Campbell, 268 F.3d at 7, n.7. Therefore, reasonable jurists could not find that he has made a substantial showing that the Blakely issue would have been clearly stronger than the issues raised by appellate counsel. [1]

Campbell's request to proceed IFP is granted, but his request for a COA is denied. The appeal is terminated.

[1] To the extent that petitioner is seeking to assert a new claim based on Blakely (rather than to provide supplemental support for his ineffective assistance claim), he would be required to present that claim first in the district court. Certification to file a second or successive petition could not be granted unless the Supreme Court had held that Blakely applied retroactively to cases on collateral review. 28 U.S.C. § 2255.

While this is an unpublished opinion, and denied appellant the relief he sought, it is notable that the Court never states Blakely does not apply to the federal sentencing guidelines. Instead, it talks about appellant having to await for the Supreme Court to hold that Blakely applied retroactively to cases on collateral review, and not even if Blakely is first held to apply to the federal sentencing guidelines.

First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited

In United States v. Carlos Lopez, No. 03-1767 (1st Cir. August 19, 2004), the Court stated at n. 1:

Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).

So, we still do not have "guidance" from the First Circuit, but neither do we have any dumb orders saying that the guidelines should continue to be applied as if Blakely had never been decided. In other words, the First still believes that the blind ought not to lead the blind.