Blakely Blawg
Tuesday, July 13, 2004
Blakely Blawg Demise. I'm back from vacation, but as of today I will not be continuing the "Blakely Blawg" page. Prof. Douglas Berman is providing such excellent and comprehensive coverage at Sentencing Law & Policy and other resources are starting to pop up.

On the Criminal Appeal blog I'll continue to highlight 9th Circuit and California Blakely developments.
Saturday, July 03, 2004
Vacation time. I'm off to the airport this morning. I'll be back on Monday, July 12. No blogging on vacation, unless I drive the 5 miles to town and the library happens to be open.

In the meantime, get your Blakely news from Sentencing Law and Policy, NACDL and your local groups.
Thursday, July 01, 2004
NACDL: The NACDL has a Blakely resource page.
Third Circuit Requests Briefing. In a case that has already been argued, the Third Circuit has sua sponte requested briefing on whether Blakely requires resentencing if the court affirms the conviction. This post-argument sua sponte request in a case in which there was no Apprendi objection in the district court and no Apprendi argument in the Court of Appeals reflects on the magnitude of Blakely.
Guidelines Partially Unconstitutional. According to a partial sentencing transcript in U.S. v. Fanfan, Judge (June 28, 2004) District Judge D. Brock Hornby (D. Maine) held that Blakely applied to the federal sentencing guidelines. Rather than tossing the entire book out, however, Judge Hornby calculated the guideline range based on only the facts found by the jury, as reflected by the verdicts. This meant the quantity of cocaine was limited to 500 grams and there would be no leadership role enhancements. Instead of a range of 188-235 months, the range was 63-78 months. In sentencing the defendant at the high end of the range, the court relied on the defendant's leadership role.

In concluding that Blakely applied to the guidelines, Judge Hornby relied, not just on the reasoning of the majority, but the warnings of the dissenters and the Solicitor General that such reasoning would apply to the federal guidelines.

Update: Read the S.G.'s parade of horribles amicus brief here.
U.S.S.G. Unconstitional. On June 29, Judge Paul G. Cassell (C.D. Utah) held the guidelines unconstitutional in a guilty plea case. US v. Croxford, no. 2:02-CR-00302PGC (June 29, 2004). (Judge Cassell, by the way, clerked for Justice Scalia when he was on the Court of Appeals, and then for Justice Burger.)

He considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he jettisoned the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

Commentary from Sentencing Law and Policy here.
Sorry for the quiet. Like everyone else I know, I've been working on a Blakely brief and other Blakely-related inquiries and efforts. More to come soon.

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