From a Federal Perspective: Apprendi in the Wake of the Blakely Decision

On June 26, 2000, the United States Supreme Court issued a watershed Opinion in Apprendi v. New Jersey providing that “[o]ther 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.” Since that time, there has been a cascade of cases interpreting the practical implications of Apprendi. The resulting decisions from the United States Court of Appeals for the varying Circuits have narrowly construed the above-quoted language from Apprendi to mean that, unless the ultimate sentence imposed by the Court exceeds the legislatively-designated statutory maximum penalty for the underlying offense, there is no Apprendi violation. 2 Based upon this very strict interpretation of the letter (rather than the spirit) of Apprendi, meaningful, practical application of the opinion had all but halted. This was especially true in federal Court since many defendants are charged pursuant to statutes carrying very high statutory maximum penalties (if not life). 3

However, on June 24, 2004 (nearly four years to the day after Apprendi was decided), the United States Supreme Court issued its decision in Blakely v. Washington, ___S.Ct.___, , 2004 WL 1402697 (2004), clarifying Apprendi and inherently calling into question all of the intervening, strict, statutory maximum based interpretations thereof. In its Brief and Oral Argument, the state of Washington suggested that there was no Apprendi violation because Blakely’ssentence did not exceed the 10-year maximum penalty for class B felonies even though the sentencing court determined the existence of disputed aggravating facts that increased the defendant’s ultimate sentence beyond the “standard range” maximum (53 months) as set forth in Washington’s legislatively enacted Sentencing Reform Act. 4, 5

Justice Scalia’s majority holding in Blakely flatly rejects this argument, declaring that “[o]ur precedents make clear, however, that the ‘statutory maximum’ forApprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts ‘which the law makes essential to the punishment,’ and the judge exceeds his proper authority.” 6

In essence, the Blakely majority held that the Sixth Amendment right to jury trial.. ‘is no mere procedural formality, but a fundamental reservation of power in our constitutional structure…. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended… The jury could not function as circuit breaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” 7

Additionally, the Court notes that, for a judicially imposed sentencing enhancement to satisfy Apprendi and the Sixth Amendment in the context of plea bargaining, the defendant must either stipulate to the relevant facts or consent to judicial fact-finding. 8

In the wake of Blakely, how will Apprendi change or lend credence to the way we advocate for our clients? Although there is no definitive answer as of yet, insight can be gleaned from a number of sources.

Justice Scalia expresses reservation about the “fairness” of the “regime [‘replaced’ by Apprendi]…in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 §§§ U.S.C. 841(b)(1)(A), (D), based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong.” 9

Although the majority expresses no opinion as to Blakely’s impact on the United States Sentencing Guidelines, Justice O’Connor’s dissent rejects the United States’ “half-hearted suggest(ion)” that the Federal Sentencing Guidelines can be distinguished from Washington’s scheme.’ 10 Rather, she declares, “[i]f anything, the structural differences that do exist make the Federal Guidelines more vulnerable to attack,”” Justice O’Connor goes on to state that the majority’s condemnation of “soft constraints” under Apprendi.. . “suggests that the hard constraints found throughout chapters 2 and 3 of the Federal Sentencing Guidelines, which require an increase in the sentencing range upon specified factual findings, will meet the same fate.” 12

Specifically, Justice O’Connor declares that, “[u]nder the majority’s approach, any fact that increases the upper bound on a judge’s sentencing discretion is an element of the offense. Thus, facts that historically have been taken into account by sentencing judges to assess a sentence within a broad range–such as drug quantity, role in the offense, risk of bodily harm-all must now be charged in an indictment and submitted to a jury. .. Justice O’Connor repeatedly looks to the U.S. Sentencing Guidelines for examples of fact finding impacted by the majority’s opinion. She either explicitly or implicitly mentions the following factual determinations which affect federal sentence computations: base offense level in the context of drug cases, specific offense characteristics (enumerating firearm and financial crimes), victim related adjustments, role in the offense, and obstruction of justice.

As Justice O’Connor acknowledges, the practical impact of Blakely is sweeping. Although not expressly condemning the U.S. Sentencing Guidelines, the federal courts (and arguably the Tennessee courts) will have to address the prospective impact in the context of pleas and trial. As a practical matter, our clients need to understand this latest clarification of their Sixth Amendment right to jury trial. They have the right to have a jury of twelve determine every single fact that will affect their sentence by proof beyond a reasonable doubt.

‘This means that, for Fifth Amendment due process purposes, the government must provide the defense with written notice (probably a charging instrument passed upon by a grand jury as Justice O’Connor suggests), articulating all facts that the government seeks to prove and use to enhance a defendant’s sentence. Arguably, in the context of trial, there could be a bifurcation into guilt and penalty phases. This would further require the artful drafting of jury instructions and special verdict forms that dissect, explore, illuminate and paraphrase the U.S. Sentencing Guidelines.

Since Apprendi was decided, many of us have requested (to no avail) special verdict forms with space for the jury to fill in the precise amount of drugs for which our client is to be held accountable (rather than a mere statutory range). In such cases, Blakely has breathed new life into our respective appeals.

In the context of guilty pleas, the issues may be more complex. Blakely may prompt some defendants who have plead and are awaiting sentencing to seek to withdraw their guilty pleas. Alternatively, other defendants may invoke the powerful language of Blakely and request that a jury be empaneled to determine disputed sentencing enhancements. Yet other defendants will argue that, because the factual basis for the plea (i.e., the facts stipulated to by the defendant) does not support the enhancement suggested in the Presentence Investigation Report or advanced by the government, the sentencing court does not have the authority to find additional facts and thus, there should be no enhancement or upward adjustment beyond that supported by the factual basis. This same argument may also hold true for defendants convicted following a jury trial and awaiting sentencing.

At least in the Middle District, it is significant to note that the standard plea petition requires a waiver of the right to jury trial and a submission to the judge of the facts relevant to a sentencing determination. However, the standard plea petition fails to advise the client that they have a right to have a jury decide beyond a reasonable doubt these same facts relating to the same sentencing determinations. Some courts may construe this as a waiver of the defendant’sApprendi rights, which are rooted in the Sixth Amendment On the other hand, other courts may find that the defendant did not enter into a knowing, voluntary plea because he/she did not truly understand the full force and affect of his/her Sixth Amendment right to jury trial, and it was not explained to him/her by the court in the petition, by counsel or in the subsequent plea colloquy.

Many issues arise as a result of Blakely‘s clarification of the Apprendi decision. What effect will this have on our past and present clients? We may need to advise our clients (at least going back to the Apprendi decision date of June 26, 2000) that this opinion may affect their conviction and/or sentence. The ultimate effect is unclear at this time, but what is certain is that the impact will be determined on a case-by-case basis.

There may be other considerations as well. If the government begins superseding all of its Indictments to comply with Blakely, how will the grand jury deal with the complexities of this new type of Indictment? How will it be instructed? Will the byproduct be an increase in potential grand jury abuse issues?

Perhaps the most perplexing of all questions is whether the U.S. Sentencing Guidelines are constitutional. Do they eviscerate a criminal defendant’s Sixth Amendment right to trial by jury as defined in Blakely? Do fundamental concepts such as relevant conduct and cross- referencing (which are wholeheartedly embraced by the U.S. Sentencing Guidelines) contravene the newly defined letter and spirit of Apprendi, and thus, undermine a fundamental constitutional tenet?

In an astonishing foreshadowing of the Blakely opinion, a published opinion from the United States District Court for Massachusetts (issued one week prior to theBlakely decision) answers these questions in the affirmative. 14 In United States v. Green, Chief Judge William Young found the U.S. Sentencing Guidelines to be unconstitutional for a plethora of reasons, but he specifically cites Apprendi and insightfully interprets it in a manner remarkably consistent with Justice Scalia’s majority opinion in Blakely15

Based upon BlakelyApprendi has new life in federal court. On its face, it appears to have a multitude of practical applications in our pending and past cases. Make no mistake, it is a must read.

About the Author: Kim Hodde is a private criminal defense practitioner in the Middle District of Tennessee who serves on TACDL’s AdHoc Federal Court Committee. For more information about this article or to suggest topics for future articles, please contact her at 615-242-4200.

  1. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
  2. United States v. Leachman,309 F.3d 377 (6thCir.2002)(constitutional rights prescribed in Apprendi decision of U.S. Supreme Court applied only to factors that extended defendant’s sentence beyond the statutory maximum, not to those that increased the statutory mandatory minimum); See, e.g.,United States v. Robinson, 241 F.3d 115, 122 (1st Cir,2001), cert. denied, 534 U.S. 856, 122 S.Ct. 130, 151 L.Ed.2d 84 (2001); United States v. Harris, 243 F.3d 806, 809 (4th Cir.2001); U.S. v. Keith, 230 E.3d 784, 787 (5th Cir.2000), cert. denied, 531 U.S. 1182, 121 S.Ct. 1163, 148 L.Ed.2d 1023 (2001); United States v. Rodgers, 245 F.3d 961, 965-68 (7th Cir.2001); United States v. Aguayo-Delgado, 220 F.3d 926, 933-34 (8th Cir.2000), cert. denied, 531 U.S. 1026, 121 S.Ct. 600, 148 L..Ed.2d 513 (2000); United States v. Garcia-Sanchez, 238 F.3d 1200, 1201 (9 Cir.2001); United States v. Sanchez, 269 F.3d 1250, 1269(11th Cir.2001), cert. denied, 535 U.S. 942, 122 S.Ct. 1327, 152 L.Ed2d 234 (2002);United States v. Humphrey, 287 F.3d 422,454 (6th Cir.2002).
  3. See, e.g., 18 U.S.C. 924(c); 21 U.S.C. § 841, 846, 848, 856, 859, 860 & 861.
  4. See, Blakely v. Washington, 2004 WL 199237 (Appellate Brief for State of Washington) (U.S. Jan. 23, 2004); See also, Blakely v. Washington, 2003 WL 22970606 (Appellate Brief for Petitioner Blakely) (U.S. Dec. 04, 2003);Blakely v. Washington, 2004 WL 371671 (Appellate Reply Brief for Petitioner Blakely) (U.S. Feb. 25, 2004).
  5. In making its contested factual finding of the existence of an aggravating factor, the sentencing court considered hearsay and used a preponderance of evidence standard. Blakely V. Washington, 2003 WL 22970606 (Appellate Brief for Petitioner Blakely) (U.S. Dec. 04, 2003).
  6. Blakely v. Washington, 2004 WL 1402697, *4 (U.S. Wash 2004) (emphasis in original) (citations omitted).
  7. Blakely, 2004 WL 1402697, *6.
  8. Blakely, 2004 WL 1402697, *8 (citing Apprendi, 530 U.S., at 488, 120 S.Ct. 2348; Duncan v. Louisiana,391 U.S. 145, 158, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968)).
  9. Blakely, 2004 WL 1402697, *8
  10. Blakely, 2004 WL 1402697, *16 (O’Connor dissent); Cf, Blakely v. Washington, 2004 WL 177025 (Appellate Brief for United States as Amicus Curiae) (U.S. Jan. 23, 2004).
  11. Blakely, 2004 WL 1402697, *16 (O’Connor dissent).
  12. Id.
  13. Blakely, 2004 WL 1402697, *13 (O’Connor dissent)( citing In re Winship,397 U.S. 358, 90 S.CI. 1068, 25 L.Ed.2d 368 (1970)).
  14. United States v. Green, F.Supp.2d_, 2004 WL 1381101 (D.Mass. Jun. 18, 2004).
  15. Green, 2004 WL 1381101 *16-24.