Departmental Legal Positions and Policies in Light of Blakely v. Washington

DOJ Seal

U.S. Department of Justice

Office of the Deputy Attorney General

The Deputy Attorney General

Washington, D.C. 20530

July 2, 2004

TO: All Federal Prosecutors
FROM: James Comey
Deputy Attorney General
SUBJECT: Departmental Legal Positions and Policies in Light of Blakely
v. Washington

In Blakely v. Washington, 2004 WL 1402697 (June 24, 2004), the Supreme Court applied
the rule announced in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), to invalidate, under the
Sixth Amendment, an upward departure under the Washington State sentencing guidelines
system that was imposed on the basis of facts found by the court at sentencing. The Court
observed that the United States, as amicus curiae, "notes differences between Washington's
sentencing regime and the Federal Sentencing Guidelines but questions whether those
differences are constitutionally significant." Id. at *6 n.9. The Court then reserved whether its
Sixth Amendment holding applied to the Guidelines, stating that "[t]he Federal Guidelines are
not before us, and we express no opinion on them." Ibid.

This memorandum provides guidance for federal prosecutors concerning the legal
positions and charging practices of the United States in light of th Blakely decision. The
Criminal Division will provide detailed guidance on the effect of Blakely on indictments, guilty
pleas, jury trials, appeals, and collateral challenges under 28 U.S.C. § 2255. The Criminal
Division will also provide sample materials for use in court.


The position of the United States is that the rule announced in Blakely does not apply to
the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally
applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of
the evidence standard, at sentencing. 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. All federal prosecutors should therefore argue un favor of the
continued constitutional validity of the Sentencing Guidelines as a system requiring the
imposition of sentences by judges. If the court rules that Blakely does invalidate all or part of the
Guidelines system, prosecutors should preserve an objection. The Department of Justice has
traditionally adhered to the principle that it will defend the constitutionality of Acts of Congress
in all but the rarest of instances. The government vindicates that principle here by defending the
constitutionality of the Sentencing Guidelines.



If courts disagree with the government's legal position on the inapplicability of Blakely
to the Guidelines, the next question that arises is what sentencing consequences ensue. The
position of the United States is that, if Blakely applies, thus rendering the Guidelines' method of
judicial factfinding unconstitutional, the Guidelines cannot be applied at all in certain cases.
Those cases consist of prosecutions in which the application of the Guidelines requires the
resolution of contested factual issues to determine whether upward adjustments or upward
departures should be imposed above the maximum sentence based solely on the facts admitted
by the defendant in a guilty plea or established by the jury's verdict. In such a case, overlaying
the Blakely procedures on the Guidelines would distort the operation of the sentencing system in
a manner that would not have been intended by Congress or the United States Sentencing
Commission. Thus, if Blakely applies, the constitutional aspects of the Guidelines cannot be
severed from the unconstitutional ones. In that event, the court cannot constitutionally apply the
Guidelines, but instead should impose a sentence, in its discretion, within the maximum and
minimum terms established by statute for the offense of conviction. In all such cases, the
government should argue that, in the exercise of its discretion, the sentencing court should
impose a sentence consistent with what would have been the Guidelines sentence.

There are three critical components of this position. 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. 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 approach of having judges exercise discretion within the minimum and maximum
statutory terms, rather than applying the Guidelines piecemeal, does not represent a departure
from the Department's commitment to Guidelines sentencing. The Department will continue to
urge that the Guidelines are constitutional in that Blakely is inapplicable. The government's
alternative position that Blakely cannot be integrated into the existing sentencing scheme
represents a recognition that the application of the Blakely charging, jury-trial, and reasonable-
doubt procedures to the Guidelines distorts them in ways that render the Guidelines system, as
currently configured, unworkable, and that Congress and the Commission would not have
intended such a hybrid system. The conclusion that the entire system must fall, if Blakely applies
in a particular case, permits prosecutors to urge that sentencing courts impose appropriately
severe sentences within the statutory maximum and minimum terms as a matter of their


The sentencing courts then can, as a matter of discretion, consider the same factors that
the Guidelines make relevant to sentencing. Blakely explicitly recognizes the constitutionality of
such a discretionary sentencing process that considers all relevant facts. That interim solution,
until definitive clarification is obtained from the Supreme Court and Congress, is legally and
practically preferable to applying Blakely piecemeal so as to radically disfigure the operation of
the Guidelines and in certain cases produce grossly inadequate sentences.


Until the Supreme Court definitively rules on the constitutional impact of Blakely on the
Guidelines, prosecutors should follow certain protective procedures in order to safeguard against
the possibility of a changed legal landscape as a result of future court decisions.

1. Indictments. Prosecutors should immediately begin to include in indictments all readily
provable Guidelines upward adjustment or upward departure factors (except for prior
convictions that are exempt from the Blakely and Apprendi rules). While the legal position of the
government is that inclusion of such factors is not constitutionally required in order to enhance a
Guidelines sentence, in light of the unpredictable future path of court rulings, it is prudent for the
government to protect against the possibility that such allegations in indictments will be held

2. Superseding indictments. In pending prosecutions that have not resulted in a plea of guilty or
a trial, prosecutors should obtain superseding indictments that allege all readily provable
Guidelines upward adjustment or upward departure factors (except for prior convictions that are
exempt from the Blakely and Apprendi rules).

3. Pretrial explanatory filings. Prosecutors should make clear to courts, in appropriate pretrial
filings, that the indictment alleges Guidelines sentencing factors as a protective measure, in the
event that the court concludes that compliance with the Blakely procedures is constitutionally
required to secure upward adjustments and departures and that the Blakely procedures can be
applied to the Guidelines. The government should urge the court to rule, before trial, whether it
will apply Blakely to the Guidelines and, if so, how it will sentence the defendant upon
conviction (i.e., by applying the Guidelines to facts proved under the Blakely-required
procedures, or by applying discretionary sentencing within the statutory sentencing range). If the
defendant objects to the inclusion in the indictment of Guidelines factors, the government should
consider offering to strike the allegations if the defendant agrees to waive any Blakely objection
to the imposition of sentence based on the traditional Guidelines sentencing process, including
factfinding on Guidelines factors by the judge, generally under the preponderance standard.

4. Plea waivers. Prosecutors should immediately seek to obtain plea agreements that contain
waivers of all rights under Blakely. The agreements should generally include provisions stating
that the defendant agrees to have his sentence determined under the Sentencing Guidelines;
waives any right to have facts that determine his offense level under the Guidelines (including
facts that support any specific offense characteristic or other enhancement or adjustment) alleged
in an indictment and found by a jury beyond a reasonable doubt; agrees that facts that determine
the offense level will be found by the court at sentencing by a preponderance of the evidence and
that the court may consider any reliable evidence, including hearsay; and agrees to waive all
constitutional challenges to the validity of the Sentencing Guidelines. Prosecutors may agree to
modified waivers or conditional plea agreements preserving certain challenges if such
concessions are found necessary in a particular case.

5. Presentence reports. Prosecutors should urge courts to continue to direct probation officers
to prepare presentence reports that contain Guidelines sentencing calculations based on all
available factual information normally considered at sentencing before the advent of Blakely.
Regardless of what impact Blakely is held to have, the presentence report's computations under
the Guidelines will be valuable in assisting the judge at sentencing and in assisting the
Department, the Sentencing Commission, and Congress in assessing the effect of Blakely.

6. Alternative sentences. Prosecutors should ask district courts to state alternative sentences to
enable efficient and prompt resentencing in the event that later appellate developments reject the
approach that the sentencing court applies.

7. Data collection. U.S. Attorney's offices and the components of Main Justice should
immediately establish data collection procedures, using standardized procedures to be developed
by EOUSA, to ensure collection of information about (a) sentences actually imposed on
defendants in light of Blakely and (b) the Guidelines range that would have been applicable
absent Blakely. The collection of such data is critical to allow the Department to monitor the
sentencing effect of Blakely.


The Department of Justice is committed to ensuring that the federal criminal justice
system continues to impose just and appropriate sentences that meet the goals of the Sentencing
Reform Act. Despite the current uncertainty about the implications of Blakely, I am confident
that federal prosecutors, under the policies described above, can continue to play their vital role
in bringing justice to their communities and effectively vindicating federal criminal law.

Updated September 9, 2014