The DOJ memo was noted here at Sentencing Law and Policy and C&F is unimpressed. SCOTUS blog offers this comment. Here's my take:
The memo starts out in Section I by admitting that the Supreme Court has pegged the government to a position in footnote 9 of Blakely which stated it believed there was little or no difference between the federal sentencing requirements and Washington's guidelines. It goes on to point out that the Supreme Court stated it expressed no opinion on the guidelines.
Having gotten that out of the way the memo moves on to Section II. In this section the government walks away from its Blakely position and orders AUSA's to argue that the federal guidelines are constitutional and that District Court judges don't have the right to interpret the constitutionality of the guidelines:
The government's legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.[comment] I don't think that the bigwigs at DOJ actually expect to win this argument. They seem to want to preserve the appeal just in case there is an appellate court out there which cannot read or distinguishes the Washington guidelines because they were passed into law on a different date than the federal guidelines.
Section III: Here the government lays out its position "if" Blakely applies to the federal guidelines
First, the Guidelines remain constitutional and applicable if the Guidelines sentence can be calculated without the resolution of factual issues beyond the admitted facts or the jury verdict on the elements of the offense of conviction. Thus, in cases where a court, applying the Guidelines as they were intended, finds that there are no applicable upward adjustments under the Guidelines beyond the admitted facts or the jury verdict on the elements of the offense, the Guidelines are constitutional and should be applied.[comment] Can you say schizophrenia? If they're unconstitutional we will push for them to be applied when the situation favors us but when it doesn't we will push for them to be totally disregarded so that we can push for them to be applied. I feel sorry for the AUSA's who have now been ordered to stand in front of the same judge and argue inconsistent positions. On Monday the judge will hear himself told that he should follow the guidelines and on Tuesday he will be told that he should use indeterminate sentencing. That doesn't really build your credibility with the courts.
Second, in a case in which the defendant agrees to waive his right to resolution of contested factual issues under the Blakely procedural requirements, the Guidelines should be applied. Thus, waivers of "Blakely rights" in connection with plea agreements and guilty pleas may be sought.
Third, in a case in which there are applicable upward adjustments under the Guidelines, and the defendant desires to contest the underlying facts under the Blakely procedures, the Guidelines system as a whole cannot be constitutionally applied. In that event, the government should urge the court to impose sentence, exercising traditional judicial discretion, within the applicable statutory sentencing range. The government's sentencing recommendation in all such cases should be that the court exercise its discretion to impose a sentence that conforms to a sentence under the Guidelines (including justifiable upward departures), as determined without regard to Blakely.
This strikes me as a poorly thought out position based solely on what favors the prosecution rather than a constitutional principle. The difference between this and the Utah Decision is that the judge in Utah decided to go with indeterminate sentencing across the board and use the guidelines as guidance. I believe this will be the minority position but at least it is consistent as opposed to the back and forth which this memo calls for.
Section IV: Tactics
(1 & 2) Make indictments contain as many sentencing factors as possible.
[comment] No big shock here. It's an obvious step. The question that arises is whether Defendants will be able to get sentencing factors which are not factors needed to prove the alleged offense struck as surplusage.
(3 & 4) Explain to the judge why you are cramming all that stuff into the indictment and try to get the judge to take a position on Blakely pretrial.
Try to get Defendants to waive any rights they may have pursuant to Blakely.
[comment] I don't think the Defendant can waive the burden of proof since it's not really a right but a burden on the prosecutor. It strikes me that the Defense cannot relieve the prosecutor of a burden he cannot place on that prosecutor. This is different from requiring a trial or discovery under Brady because both of those require the defense to take a step to put the burden on the prosecution (pleading not guilty or making a discovery request). The burden of proof is pre- existent, requiring no action on the part of the Defendant. Surely a Defendant can stipulate that the evidence fulfills that burden but I don't think he can make it go away.
(5) Urge the courts to continue having presentence reports done by the probation officers.
(6) Try to get the judges to issue multiple, contingent sentences.
[comment] Are trial courts authorized to do such a thing? It would seem to me that in so doing courts would not be ruling on the case at hand and the law as the court understands it. The court would be ruling on hypotheticals. If the law doesn't mean what I say it means then . . .
It's not really much of an issue and as a practical matter courts who did this could potentially save a lot of time and trouble. Still, I have this nightmare image of paperwork getting screwed up and some guy serving 5 years rather than the 2 he should have because someone in the prison system put the contingent number in the computer rather than the real sentence.
(7) Keep track of the actual sentences and the potential sentences under the guidelines.
[comment] Because how else are we going to gather statistics to fight this in courts or use in Congress?
Lies, damn lies, and . . .