Blakely Blawg
Wednesday, June 30, 2004
More Words from the Street Please! Send me links to Blakely published or unpublished orders or opinions, or news stories or blog posts on how Blakely is playing out in your jurisdiction.
"Blakely, Word on the Street," is the title of a post over at Crime & Federalism, describing the government's apparent approach in one jurisdiction:
"Here is some intel on how Blakely is working its way through one jurisdiction:
*The government is not concededing that Blakely applies. [Well, of course.]
*But they will charge new cases, and bring superceding indictments in old cases, as if it does. ...

Tuesday, June 29, 2004
Blakely Bakes Alaska: "Ruling leaves plea deals in limbo."
Blakely and California's Proposition 36. I think it applies, at least partly. (Note: This post is identical to one I just posted at Criminal Appeal.)

Under Proposition 36 (Cal. Penal Code § 1210.1(a)), the statutory maximum for "[A]ny person convicted of a nonviolent drug possession offense" is probation. If the court finds certain facts true, the court may deny probation and impose a state prison term:
(b) Subdivision (a) does not apply to either of the following:
(1) Any defendant who previously has been convicted of one or more serious or violent felonies in violation of subdivision (c) of Section 667.5 or Section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (A) a felony conviction other than a nonviolent drug possession offense, or (B) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
(2) Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.
(3) Any defendant who:
(A) While using a firearm, unlawfully possesses any amount of (i) a substance containing either cocaine base, cocaine, heroin, methamphetamine, or (ii) a liquid, nonliquid, plant substance, or hand-rolled cigarette, containing phencyclidine.
(B) While using a firearm, is unlawfully under the influence of cocaine base, cocaine, heroin, methamphetamine or phencyclidine.
(4) Any defendant who refuses drug treatment as a condition of probation.
(5) Any defendant who (A) has two separate convictions for nonviolent drug possession offenses, (B) has participated in two separate courses of drug treatment pursuant to subdivision (a), and (C) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment. Notwithstanding any other provision of law, the trial court shall sentence such defendants to 30 days in jail."
§ 1210.1
Some of these facts which raise the statutory max are recidivist-based and may have Almendarez-Torres problems, but others don't and the Blakely/Apprendi analysis applies such that there there's is federal constitutional right to a jury trial.
Monday, June 28, 2004
The Sentencing Law and Policy Web log, brought to us by Prof. Douglas Berman, will be an indispensible resource in finding our way in Blakely land.
More on Blakely and Cal. DSL here (Registration and login required.) (From the Central California Appellate Program.)
Blakely and California DSL: preliminary thoughts (From the First District Appellate Project).
Sunday, June 27, 2004
Blakely and Retroactivity? There's an argument that the rule stated in Blakely is not new, the court was merely applying Apprendi. That means the rule applies to case that were not yet final on direct review when Apprendi was decided.

Justice O'Connor appears to agree. She posits that sentences imposed after Apprendi (not just those on direct appeal when Blakely was decided) are "in jeopardy":
Every sentence imposed under such guidelines in cases currently pending on direct appeal is in jeopardy. And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. See Teague v. Lane, 489 U. S. 288, 301 (1989) (plurality opinion) ("[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final").
O'Connor, dissenting, slip op. at 11.


Blakely Applied to USSG Offense Characteristics?

Blakely Applied to United States Sentencing Guidelines Upward Departures?

Blakely Blawg is Born
This will be a place for news and cases relating to the blockbuster sentencing decision the U.S. Supreme Court decided last Thursday (June 24, 2004): Blakely v. Washington. Send me your news about Blakely related legislation, cases, and news, and I'll post it here for others to read.

I've already got enough to do, so don't expect too much analysis in the posts. Use the comments to get dialogues going. I'll start a few threads going right away.

I will continue blogging California and Ninth Circuit post-conviction matters at Criminal Appeal.

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