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July 28, 2004

SCOTUS hears the other side

The defendants and amicus are today filing papers in response to the Solicitor General's cert petitions (background here and here). Here's what I can tell from a quick review of the documents that I have in hand (and post below):

A. The amicus from the National Association of Criminal Defense Lawyers suggests that the High Court grant review in Booker (from the Seventh Circuit) or Pineiro (from the Fifth Circuit), deny review in Fanfan (from the Maine District Court), and grant review in Bijou (a case involving an enhancement based essentially on "acquitted conduct" decided by the Fourth Circuit before Blakely). Here are the questions presented in this amicus brief:

1. Whether a district court violates the Fifth and Sixth Amendments by relying upon facts that increase the maximum sentence available under the United States Sentencing Guidelines (other than the fact of a prior conviction) when those facts were not charged in the indictment and either found by the jury on proof beyond a reasonable doubt or admitted by the defendant.

2. If the answer to the first question is “yes,” the following question is presented: What role do the Sentencing Reform Act, the Sentencing Guidelines, and Federal Rule of Criminal Procedure 32 continue to play in federal criminal sentencing?

Download nacdl_blakely_amicus_final.pdf

B. Fanfan is opposing cert (in a brief signed by former SG Seth Waxman and co-authored by several other heavy hitters) while endorsing Bijou as a vehicle for the consideration of these matters. The briefs also suggests that the Court should not expedite the briefing schedule, but should expedite the argument date.
Download fanfan_bio.pdf
Download fanfan_appendices.pdf
Download fanfan_response_to_motion_to_expedite.pdf.pdf

C. It seems that Booker may be consenting to cert but opposing expedition, although details are still sketchy and I do not yet have a brief in hand. (UPDATE: I now have the Booker briefs here, and the arguments appear wonderfully nuanced):
Download booker_brief_in_response.pdf
Download booker_response_expedite.pdf

More details (perhaps more accurate details) can be found here at the SCOTUSBlog. And more details (and commentary) here soon.

July 28, 2004 at 02:38 PM | Permalink

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The amicus from the National Association of Criminal Defense Lawyers suggests that the High Court grant review in Booker (from the Seventh Circuit) or Pineiro (from the Fifth Circuit)

Posted by: Robe de Soirée 2013 | Dec 14, 2012 12:49:03 AM

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