The Myth of Economical Parallel Sentences

Post from Ron:
As part of my “Ron Meets the Real World Tour,” I have been chatting lately with prosecutors and defense attorneys in federal court, especially in the Fourth Circuit. You may recall that the Fourth Circuit, in Hammoud (background here), held that the guidelines were still constitutional but also “recommended” that district judges impose an “alternative” sentence treating the guidelines as advisory.

Based on my conversations so far, it appears that few district judges are accepting the invitation from the Fourth Circuit. They are imposing sentences under the guidelines without adjusting local practice to allow for a parallel “advisory guideline” process. The reason the judges often give is that the alternative sentence, meant to conserve judicial resources, will not accomplish this goal. Doug saw this one coming, although the details about why alternative sentences are not economical remind us how much we miss when viewing the world from the vantage of an appellate judge.

The district court judges point out that if the Supreme Court does rule that the guidelines are unconstitutional, the sentences imposed in the meantime will all be remanded for sentencing anyway. Assuming that an “alternative” sentence exists somewhere in the record, it will not be formally recorded in the judgment but will be buried in the transcript somewhere, and the proceedings may not even be transcribed at that point. The defendant will also have the right to be present during the resentencing on remand, if only to hear the judge repeat the earlier “alternative” conclusion. Finally, a decision to impose an alternative sentence at this point requires all the parties to anticipate the facts that might be relevant under new law, and the procedures best suited to uncover the relevant facts. The attorneys will probably not be satisfied at some later date with the preliminary judgments they made on these questions the first time around, and will be asking to re-open some questions.

In short, given the paperwork involved in preparing for a resentencing, the necessity to schedule a hearing anyway, and the likely pressure from attorneys to reopen the merits, the judges believe that the alternative hearing will not truly save them much effort. Thus, for at least some districts in the Fourth Circuit, life goes on as if Blakely never happened … for now.

UPDATE: This story from the Charleston Courier and Post describes the decision by Judge Duffy in the District of South Carolina to impose three separate sentences: a guideline sentence, a guidelines-as-advisory sentence, and a sentence ignoring only the sentence-enhancing components of the guidelines. The story notes that this is the first case to be sentenced in the district since Blakely. So it looks like the Fourth Circuit’s advice is being heeded in some districts. What remains to be seen is which is truly the most efficient response to the current uncertainty.