In United States v. Morgan, No. 03-1768 (1st Cir. September 2, 2004) (not for publication), the First Circuit addresses issues of "waiver" and "forfeiture" of claims (in this case a Blakely claim).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