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July 30, 2004

What should the other circuits do?

With a Supreme Court grant of cert a near certainty, it is tempting to suggest (perhaps even hope) that the sentencing world can take a breather until the High Court decides what Blakely means for the federal guidelines. However, it could be two more months until the Supreme Court even hears argument on a Blakely federal sentencing case, and perhaps at least a few more months before the Supreme Court renders a decision. I doubt that the thousands of federal criminal cases now pending in district and circuit courts can be put completely on hold during this period.

Of course, those circuits which have already weighed in on Blakely have given their district courts interim guidance, although that guidance is sketchy at best everywhere except in the Fifth Circuit where court have been told to continue with business as usual. But what approach should other circuits, including the Fourth and Sixth where en banc arguments are scheduled for the next few weeks, take during this interim period of great uncertainty?

Interestingly, the Second Circuit has recently been taking what I might call a "duck and cover" approach to Blakely issues. For example, in US v. Jasper, 2004 U.S. App. LEXIS 15543 (2d Cir. July 28, 2004), a case involving a challenge to two guidelines enhancements, the Second Circuit in an unpublished disposition explained:

Our Circuit has recently certified to the Supreme Court several questions related to Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004). We will defer consideration of Jasper's sentencing challenge pending resolution of our request for certification. Once that is resolved, we will set a timetable for further briefing, should such briefing be appropriate. All of Jasper's other arguments are unavailing, and we reject them for substantially the same reasons expressed by the district court.

Similarly, in US v. Lenoci, 2004 U.S. App. LEXIS 15530 (2d Cir. July 28, 2004), a case involving a challenge to the federal guidelines' complicated grouping rules, the Second Circuit dropped this slightly comical footnote:
Oral argument was heard in this case on April 2, 2004, nearly three months before the Supreme Court decided Blakely v. Washington. While we bring the grouping issues raised in this case to the attention of the United States Sentencing Commission, we recognize that in light of Blakely, the Commission may be presented with more pressing matters to which it must attend. In this case, the parties have not raised any Blakely issues, nor do we believe that any such issues are immediately apparent. However, out of an abundance of caution, we stay the issuance of the mandate in this case until further direction from the panel. See, e.g., United States v. Penaranda, Nos. 03-1055(L), 03-1062(L), 2004 WL 1551369 (2d Cir. July 12, 2004) (in banc).

This "duck and cover" approach certainly is understandable (though perhaps a bit disturbingly reminiscent of the (in)famous Duck and Cover government film). However, for the sake of litigants and district courts, I am inclined to think that the Second Circuit, and other circuits that have not yet spoken to Blakely issues, should make a definitive ruling about the guidelines' status even though the Supreme Court will soon return to the fray.

The Second Circuit merits, in my view, great praise for initially sending a bold and loud message when it certified Blakely questions to the Supreme Court; but I do not think circuits can or should now completely avoid speaking to what Blakely means for federal sentencing while we all await Supreme Court action. Though the Second Circuit's "punt" made a valuable symbolic point, the failure of the Supreme Court to quickly "run with the ball" now leaves district courts in the Second Circuit and elsewhere adrift. Though district court innovation and experimentation concerning how to apply Blakely in the federal system can be quite valuable, I believe circuit courts should at least endeavor to provide a sound, sensible and consistent framework for that innovation and experimentation.

July 30, 2004 at 01:30 AM | Permalink

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Though the Second Circuit's "punt" made a valuable symbolic point, the failure of the Supreme Court to quickly "run with the ball" now leaves district courts in the Second Circuit and elsewhere adrift.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:10:43 AM

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