Professor Berman has posted at Sentencing Law and Policy here an August 27th Memorandum from Honorable Sim Lake, Chair of the Committee on Criminal Law of the Judicial Conference of the United States to all federal judges wherein it is requested that in all cases they complete a supplemental statement of reasons form dealing with how the Court applied Blakely -if at all- to the case. The memorandum itself indicates, in part, that:
Since Blakely was decided, the Committee has had ongoing dialogue with the United States Sentencing Commission and the Federal Bureau of Prisons on how best to standardize data collection to reflect the district court rulings with respect to sentencing decisions. The United States Sentencing Commission has determined that part of its mission of monitoring application of the guidelines includes recording how Blakely is impacting sentencing decisions.
To assist the Commission in this effort, the Committee recommends that courts complete the attached “Supplemental Statement of Reasons,” which indicates generally how Blakely was applied in a case. If a court fully applied the federal sentencing guidelines, including relevant enhancements, the first box should be checked. If a court partially applied the federal sentencing guidelines, but without enhancements that would require facts to be found by a jury or admitted by the defendant, the second box should be checked. If a court did not apply the federal sentencing guidelines at all, and instead imposed a discretionary sentence, the third box should be checked. If the court took some other action the fourth box should be checked and a brief explanation provided. Also, if the court stated an alternative sentence, the fifth box should be checked. By using the supplemental form, the Sentencing Commission and the Federal Bureau of Prisons can determine the application of the sentencing guidelines in any given case and be alerted to the imposition of an alternative sentence. If the court uses the “Supplemental Statement of Reasons,” it should be treated as any other Statement of Reasons and be attached to the Judgment in a Criminal Case (AO 245B) and sent to all parties (i.e., defense counsel, government attorneys, probation and pretrial services offices, the United States Sentencing Commission, and, if a term of imprisonment is imposed, the Federal Bureau of Prisons and United States Marshals Service). The Supplemental Statement of Reasons should not be filed in the case file.
As the agency responsible for administering the execution of federal sentences, the Federal Bureau of Prisons advised the Committee of its concerns with regard to the issuance of alternative sentences. It is the Bureau of Prisons’ position that its staff cannot unilaterally determine whether an appellate court’s decision invalidates the primary sentence of a criminal judgment that sets forth an alternative sentence. Consequently, the Bureau of Prisons indicates its intention that a sentence alternative to the one primarily imposed will be executed only upon unequivocal direction from defendant’s sentencing court through an amended criminal judgment, or other re-sentencing order.
Additionally, courts should be aware that the Bureau of Prisons will continue to use reliable information from the presentence investigation report in making inmate classification, designation, and programming decisions, even if guideline enhancements are not imposed on Blakely grounds. Accordingly, and consistent with pre-Blakely procedures, judges should continue to include their comments and factual findings in the area provided on the Statement of Reasons form.
(emphasis added) The Supplemental Statement of Reasons form to be used by the courts requests the following information:
AO 245B (Rev. 08/03) Criminal Judgment
Supplemental Statement of Reasons
SUPPLEMENTAL STATEMENT OF REASONS
APPLICABILITY OF THE FEDERAL SENTENCING GUIDELINES
__ The court applied the Guidelines and all relevant enhancements in this case.
__ The court found the Guidelines unconstitutional in part, and imposed a sentence in accordance with the constitutionally applied portions of the Guidelines.
__ The court did not apply the federal sentencing guidelines at all in this case and
imposed a discretionary sentence.
__ The court took some other action (Please explain below.):
__ This judgment includes an alternative sentence.
Given the BOP's position that it will continue "to use reliable information from the presentence investigation report in making inmate classification, designation, and programming decisions, even if guideline enhancements are not imposed on Blakely grounds" it is very important that defense counsel continue to ascertain the accuracy of all information contained therein, regardless of whether the sentence itself will be impacted.