Epis Appeal: First 'Blakely' Sighting at Circuit; More Expected

July 12, 2004

Jeff Chorney, The Recorder

The earthquake has hit the West Coast.

The Ninth Circuit U.S. Court of Appeals on Monday ordered a district court to re-examine a criminal sentence in light of Blakely v. Washington, 04 C.D.O.S. 5539, the U.S. Supreme Court sentencing decision that has thrown criminal practice into disarray across the country.

The order in U.S. v. Epis, 04 C.D.O.S. 6182, comes just before the court appoints a committee that will study the impact of Blakely and other sentencing issues, and it is the first time the decision has appeared in a published Ninth Circuit matter.

Blakely, which calls into question 20 years of federal sentencing guidelines, has already reverberated through federal courts. Locally, it is prompting some defendants to plead guilty to charges in order to try to avoid superceding indictments the government might file to comply with the decision.

Blakely has essentially upended criminal practice as we know it,” said Assistant U.S. Attorney Matthew Jacobs, spokesman for the Northern District federal prosecutor's office. “It has created an enormous amount of uncertainty.”

One reading of Blakely, which held that juries -- not judges -- must decide any elements leading to an upward sentencing departure, says federal prosecutors now must include details in indictments that normally wouldn't have come up until after trial. Federal prosecutors have been instructed by Deputy Attorney General James Comey to assume that worst-case scenario and charge accordingly.

Northern District Federal Defender Barry Portman said his attorneys are taking different approaches depending on the situation.

“The positions that we take in these cases can be varied,” he said, adding that his office plans to host a seminar this week on Blakely for private attorneys who are appointed to defend cases.

Courts are trying to clear things up, but there is a circuit split because the Fifth and Seventh Circuits have issued disparate readings of Blakely. Some federal judges have already declared the guidelines unconstitutional. And on Monday, an en banc panel of the Second Circuit took the unusual step of certifying three questions to the Supreme Court.

In addition, the Senate Judiciary Committee is scheduled to hold a hearing on Blakely today. And next week, Ninth Circuit Chief Judge Mary Schroeder said she plans to announce the appointment of a commission to look at sentencing issues in the circuit.

“We're going to have to study Blakely, and there are issues to be decided about its application and reach, and we'll have to hear the cases in due course,” Schroeder said.

In the Epis order, the Ninth Circuit did not give any interpretation of the high court's decision. Rather, the three-judge panel -- Michael Daly Hawkins, Jay Bybee and Senior Eighth Circuit Judge Donald Lay -- merely punted the case back to district court.

The panel heard arguments in Epis on June 14. When he was on trial in Eastern District of California court, Bryan Epis wanted to put up a defense based on a California state law allowing marijuana for medicinal use, but he was barred from doing so and sent to federal prison for 10 years.

Epis' attorney, Brenda Grantland, argued that Raich v. Ashcroft, 352 F.3d 1222, a Ninth Circuit decision based on the Commerce Clause that protects medical marijuana providers from federal prosecution, should apply. After Epis was argued, the U.S. Supreme Court granted certiorari in Raich.

Monday's order sent Epis back to district court for reconsideration once Raich is decided.

“If … the district court determines that Epis' conviction should remain intact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court's decision in Blakely,” according to the order.


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