High Court Decision Sows Confusion on Sentencing Rules

The Justice Department's official position is that Blakely does not apply to federal sentencing guidelines, but it nonetheless is preparing prosecutions as if the ruling does apply. In a memo issued July 2, Deputy Attorney General James B. Comey wrote that until the Supreme Court rules on Blakely's impact on sentencing guidelines, prosecutors should "safeguard against the possibility of a changed legal landscape."

Under the strategy, federal prosecutors have begun adding "readily provable" aggravating factors to indictments and have been told to "immediately seek to obtain plea agreements that contain waivers of all rights under Blakely."

One senior Justice official said: "It's fair to say [Blakely] will have a cataclysmic effect on what federal prosecutors do, at least in the short term. . . . This is the single most profound constitutional ruling many of us have seen in our careers."

The ruling is a boon to defense attorneys because it dramatically lessens the substantial leverage that federal prosecutors have gained over defendants in recent years. "We believe we have before us an opportunity, unprecedented since 1984, to create a truly just and rational federal sentencing guidelines scheme," E.E. Edwards and Barry Scheck of the National Association of Criminal Defense Lawyers wrote in a letter to Attorney General John D. Ashcroft and the administrative chief of the U.S. federal courts.

An Alexandria case illustrates the complications prosecutors are likely to face under Blakely. Wing Oi Yuen was charged in a one-count indictment with money laundering in connection with the activities of the Washington-based branch of an Asian organized crime group.

The judge would normally determine Yuen's sentence by deciding if aggravating factors were proved by a "preponderance of the evidence" rather than the stricter "beyond a reasonable doubt." After Blakely, however, prosecutors inserted new language into a proposed plea agreement that would have required Yuen to waive his right to have the factors determined by a jury beyond a reasonable doubt, according to his attorney, Alan Yamamoto.

In effect, the government was seeking to allow the judge to determine the sentence in the same way judges had before the Supreme Court decision.

Although Brinkema did allow Yuen to waive his right to have a jury make the determination, "she said you cannot waive the 'beyond the reasonable doubt standard,' '' Yamamoto said. In the final plea agreement, the government relented.