The data plot thickens

As many readers know, I have long been obsessing over just how many federal cases have Blakely factors and how different rulings in Booker and Fanfan could impact the operation of the federal sentencing system. (See generally posts here and here and here and here.) And, as detailed here, I was fascinated by a representation in the Acting Solicitor General’s reply brief concerning the number of cases that involve Blakely factors, which was apparently based upon a U.S. Sentencing Commission internal memo that I thought was not publically available.

This data story has taken an interesting turn based on a letter I received this morning (which can be downloaded below) that was apparently filed by the Acting SG with the Supreme Court yesterday. The letter “proposes to lodge material with the Clerk that is relevant to” Booker and Fanfan — namely “a copy of a three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath on the subject ‘Estimate of Number of Cases Possibly Impacted by the Blakely Decision,’ which the Commission’s General Counsel made available to the Office of the Solicitor General.” As the Acting SG’s letter explains:

The memorandum’s author, Dr. Lou Reedt, is Director (Acting), Office of Policy Analysis, United States Sentencing Commission. The memorandum’s recipient, Tim McGrath, is Staff Director of the United States Sentencing Commission.

The Commission informs us that the memorandum is an internally generated staff document prepared in an effort to project what the impact of Blakely might be, and that it has been made available to anyone who has requested it.
Fascinatingly, this “lodging letter” to the Supreme Court then goes on to make substantive points — as if this letter was a supplemental brief — about the way the Supreme Court ought to interpret the data in the Sentencing Commission’s memo:

The government does not agree with all of the assumptions and speculations made in the memorandum, particularly with respect to the extent to which plea agreements may reduce the impact of applying Blakely to the Guidelines through stipulations or waivers. The extent to which such plea agreements could or would reduce the impact of applying Blakely to the Guidelines is unknown. Even under the most conservative assumptions in the memorandum (i.e., that applying Blakely to the Guidelines does not increase the trial rate and that all guilty plea cases validly resolve Blakely issues), however, the data still suggest that 65% of the federal criminal cases that go to trial will pose Blakely issues. Despite the limitations of the document, the underlying data may prove helpful to the Court in assessing the impact of applying Blakely to the Guidelines.

I am very pleased to learn that the SG now wants the Supreme Court to see the US Sentencing Commission’s memo, and I am also very pleased to learn that I can receive a copy of the memo upon request. And, if anyone official at the USSC is reading, please consider this post a formal request for the three-page memorandum dated July 20, 2004, from Lou Reedt to Tim McGrath (though I might have thought this prior post entitled “Please, please share your data USSC” should have reasonably been understood as a sufficient request).

Yet, as is always the case, questions abound:

Why didn’t the US Sentencing Commission, supposedly an independent judicial branch agency, submit this memo directly to the Supreme Court with its own amicus brief (or, better still, a month earlier when the Supreme Court was considering a set of Blakely-related cert. petitions)?

Why won’t the USSC, which is now representing that this memo is a public document, post this memo on its website?

Has the USSC made this information available to all — or any — lower federal court judges who have been considering Blakely cases?

Will the defense team in Booker and Fanfan have an opportunity to file a “reply letter” in order to provide its view of what should be drawn from the USSC’s memo?
Download sg_booker_lodging_letter.pdf

UPDATE: Right before I have to leave for the airport, I got a copy of the aforementioned USSC memo from a friend of the blog. Here it is:
Download ussc_estimate_of_impact1_memo_form.doc