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July 15, 2004

Stop the world (for a few hours)

After this post, I am off-line for a while so I can travel to the far reaches of Ohio for a long-planned talk to the US Attorneys for the Southern District of Ohio. With all the commotion of this week, I have only been able to outline my presentation. Here's what I have: "Blakely, WOW! Montgomery, HUH? Let's Discuss." As before, I'm sure the folks at the SCOTUS Blog, How Appealing and the Blakely Blog will do a great job covering breaking Blakely news until I return.

July 15, 2004 at 11:38 PM | Permalink


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Just a few thoughts for when you get back: Much of the discussion in the circuit opinions following Blakely has been about whether the lower courts have the authority to apply Blakely to the Guidelines right now, or are bound by previous Supreme Court precedent to wait for the Supremes to take that step. Those who feel that the lower courts can proceed (Posner, the Sixth Circuit) have reasoned that the Supreme Court has never explicitly upheld the Guidelines against a Sixth Amendment Apprendi-type challenge, and so the lower courts are free consider the impact that Blakely's reasoning has on the Guidelines. Others (Easterbrook, the Fifth Circuit) have argued that other prior decisions, like Edwards and Witte, require the Guidelines to be maintained until the Supreme Court says otherwise.

I think that the Supreme Court has in fact upheld the Guidelines against an Apprendi-based Sixth Amendment attack, in Harris. In that case, the majority allowed the judge to impose a seven-year sentence for brandishing a firearm under 924(c), even though there was no jury finding or admission beyond the basic offense of possessing the gun, which carried only a five-year minimum. But Harris wasn't just about mandatory minimums; it was also a Guidelines decision, even if the majority didn't say so. Under 2K2.4, the Guidelines range for a 924(c) conviction is the applicable mandatory minimum. Thus, for a simple possession, the "range" is 60-60, while for "brandishing," it's 84-84, and for "discharging," it's 120-120. By upholding the seven-year sentence, the Court permitted the judge to make a factual finding -- "brandishing" -- that increased the top of the guidelines range from 60 to 84. Thomas's dissent recognized this in footnote 4 in Harris, so it's not as if the Court didn't realize what it was doing.

It seems to me that Harris is a direct holding that the Sixth Amendment does not apply to factors that are determined by the judge to increase the guideline range, while remaining within the statutory maximum, and so the lower courts must continue to apply the Guidelines until the Supreme Court itself says otherwise.

Posted by: 3L | Jul 16, 2004 12:52:40 PM

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Posted by: Chuck Norris | Jan 26, 2005 4:24:24 AM

see you again sometime...

Posted by: Chuck Norris | Jan 26, 2005 4:25:28 AM

I think that the Supreme Court has in fact upheld the Guidelines against an Apprendi-based Sixth Amendment attack, in Harris.

Posted by: Robe de Soirée 2013 | Dec 12, 2012 10:57:28 PM

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