The following is an email sent on June 24, 2004 by Larry Kupers at the Administrative Office of the U.S. Courts, to all Federal Public Defenders nationally, regarding the Supreme Court's decision in Blakely v. Washington.

Defenders:

The Supreme Court issued a critically important decision this morning in Blakely v. Washington, 2004 WL 1402697. This decision has the potential to strike down a good portion of the federal sentencing guidelines and thereby favorably affect just about every federal sentencing. It would be prudent to have every defender read the decision before going ahead with any sentencing hearing. The decision strikes down the Washington State guideline scheme on Apprendi grounds.

Happily for us, the decision's reasoning and application of the rule of Apprendi /Ring sweeps more broadly and renders constitutionally infirm each and every guideline sentencing enhancement that requires the finding of a fact not placed before the jury as an element of the offense of conviction.

Corroborating this point is Justice O'Connor's dissent: "The structure of the Federal Guidelines likewise does not, as the Government half-heartedly suggests, provide any grounds for distinction. Washington's scheme is almost identical to the upward departure regime established by 18 U.S.C. section 3553(b) and implemented in USSG section 5K2.0. If anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack." [!!] Note that there is the Apprendi exception for any recidivist fact, i.e., a fact regarding a prior conviction. But apart from that exception, whenever a guideline scheme assigns to a judge the authority to enhance a sentence only upon finding some additional fact, then according to this decision that fact is an "Apprendi fact" that must be proved to a jury beyond a reasonable doubt. If so, all the following guideline enhancements that increase the base offense level in the current federal sentencing scheme are unconstitutional: aggravating role, official victim, drug amount, loss amount, etc.

I would urge you, therefore, to hold off on any sentencing hearing until you have the opportunity to take advantage of this decision OR, in the right circumstances, go ahead with a sentencing hearing and insist that the judge can apply the guidelines with respect to any downward adjustments or departures but cannot make any upward adjustments or departures from the base offense level.

Larry Kupers