Lately I’ve been fielding lots of calls from people whose loved ones

might be affected by the Supreme Court’s decision in Blakely v.

Washington.

In a nutshell, Justice Scalia wrote in Blakely that, under Washington

state’s sentencing guidelines, it was unconstitutional for the judge to

increase Mr. Blakely’s sentence above the punishment authorized by the

facts found by the jury.

The consensus in the federal criminal law community (defense lawyers as

well as judges and prosecutors) is that Blakely will apply to

invalidate the federal sentencing guidelines (which allow the judge to

find things like drug quantity by a preponderance of the evidence, and

punish based on these findings).

Of all the circuit courts of appeals that have answered the question,

“does Blakely apply to the federal sentencing guidelines?” only the

Fifth Circuit has said “no.” In October the U.S. Supreme Court will be

hearing arguments on the question, and will likely answer it before the

end of the year.

I would guess that 95% of the people in federal prison would, if they

could get back into court (that is, present the issue to a judge),

benefit from Blakely. The problem at this point is getting back into

court.

Most of my callers have family members who have been in prison for a

while. The time for them to file a direct appeal (to the circuit court

of appeals) and a 2255 (in the trial court) have passed. To file

another 2255 (or a late 2255) they need one of two things: (1) newly

discovered evidence of actual innocence; or (2) a new rule of

constitutional law, made retroactive by the U.S. Supreme Court.

The Supreme Court has not made Blakely retroactive. They may do so.

Until then, I think Apprendi and Blakely should be read to redefine

“actual innocence” more broadly than “innocence of the charged

offense.” Blakely suggests that factors that increase punishment are

actually elements of the offense that need to be proven beyond a

reasonable doubt. So possession of 15 kilograms of cocaine, for

example, is actually a different (greater) offense than possession of 5

kilograms of cocaine.

If there is newly-discovered (in the year before filing the 2255)

evidence that the defendant was only responsible for 5 kilograms,

rather than 15 kilograms, then he may be actually innocent of the

offense for which he was punished (possession of 15 kilograms of

cocaine), but still guilty of the lesser offense (possession of 5

kilograms of cocaine). Such newly discovered evidence creates a good

argument for a defendant to get back into court on a successor 2255.