Apprendi and Blakely in Federal Sentencing

On June 26, 2000, the United States Supreme Court issued a watershed Opinion in Apprendi v. New Jersey, providing that “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.” Since then, a cascade of cases has interpreted the practical implications of Apprendi. 1 Decisions from the United States Court of Appeals for the various 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, no Apprendi violation exists. 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 under 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’s sentence 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 “our precedents make clear, however, that the ‘statutory maximum’ for Apprendi 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 a circuit breaker in the State’s machinery of justice if it were relegated to determining only that the defendant did something wrong at some point, 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 yet, we can glean insight 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 suggestion” 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.” 11, 12

Specifically, Justice O’Connor declares that, “under 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…”13 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, Blakely’s practical impact 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. Practically, 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 by a grand jury, as Justice O’Connor suggests) articulating all facts the government seeks to prove and use to enhance a defendant’s sentence. Arguably, at 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, 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 pleaded and are awaiting sentencing to seek to withdraw their guilty pleas. Alternatively, other defendants may invoke Blakely’s powerful language 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 apply to defendants convicted after a jury trial and awaiting sentencing.

At least in the Middle District, 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’s Apprendi 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 effect 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 from 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 the impact will be determined on a case-by-case basis.

Other considerations may also apply. 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 question 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 the U.S. Sentencing Guidelines wholeheartedly embrace) 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 the Blakely decision) answers these questions in the affirmative. 14 In United States v. Green, Chief Judge William Young found the U.S. Sentencing Guidelines unconstitutional for a plethora of reasons, but he specifically cites Apprendi and interprets it in a manner remarkably consistent with Justice Scalia’s majority opinion in Blakely. 15

Based upon Blakely, Apprendi has new life in federal court. On its face, it appears to have many 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 Ad Hoc 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 (6th Cir. 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 F.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 (9th 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.Ed.2d 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 the 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.Ct. 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.

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