July 12, 2004
Harsher post-Blakely sentences?
There's reference in the Newsday article linked here to a sentence made harsher following a ruling that the federal guidelines are unconstitutional. Here's the passage:
Alan Vinegrad, the former Brooklyn U.S. attorney now at Covington & Burling, noted that last week lawyers for a defendant convicted of making false statements asked a Brooklyn federal judge to toss out the sentencing guidelines, which called for 10 to 16 months. The judge agreed, but then imposed a five-year term. "File that under 'Be careful what you wish for,'" Vinegrad said. "It may well be that Martha Stewart could do worse if the judge did not have the constraints of the guidelines."
I am very interested, and would like to hear about, the details of this case or any others in which a judge imposed a sentence higher than provided for under the guidelines (absent an upward departure) in this post-Blakely world.
July 12, 2004 at 11:00 AM | Permalink
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I'm an appellate prosecutor in NY and I thought I'd let you know that I'm currently litigating a People's appeal from an order of a state trial court which applied Ring to find NY's discretionary persistent felony offender statute unconstitutional (NY Penal Law Section 70.10) See People v. West, 2 Misc. 3d 332; 768 N.Y.S.2d 802; 2003 N.Y. Misc. LEXIS 1485, October 23, 2003.despite a case from NY's Court of Appeals to the contrary. People v. Rosen, 96 N.Y. 2d 329, 728 N.Y.S.2d 407, 752 N.E.2d 844. The reason I mention it here is that the defendant had been sentenced, as a persistent felony offender, to 15-life. He was resentenced to consecutive terms of 12 and a half to twenty five, meaning that he is serving a sentence of 25-50.
While this is not a harsher post-Blakely sentence, it is a harsher post-Apprendi/Ring sentence.
By the way, a federal district court granted Rosen habeas relief on his Apprendi claim and the state's appeal is pending in the Second Circuit.
Posted by: Morrie Kleinbart | Jul 14, 2004 5:11:42 PM
Just to clarify the basis of the Apprendi/Ring/Blakely issue -- a defendant may be subject to a persistent felony offender sentence (which is a minimum of 15-life, the sentence for an A-1 felony in NY) regardless of the class of felony he committed if a court finds that he was convicted of two prior eligible felonies before commission of his third felony and the court then goes on to make findings concerning the defendant's history and character and the nature and circumstances of his crime.
Posted by: Morrie Kleinbart | Jul 14, 2004 5:18:48 PM
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