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July 12, 2004

The 2d Circuit Speaks (in banc)!!

Okay, just when I thought the story couldn't get any better, we get this capper on an incredible day. The Second Circuit Court of Appeals, in US v. Penaranda has issued an opinion, in banc, concerning Blakely. How does it come down, you ask. It doesn't -- rather the Court has certified three questions to the Supreme Court of the United States!!!

That's right everyone, it's time to get those Federal Courts textbooks off the shelf because the Second Circuit has fired the biggest jurisprudential firework to date. I've not yet had a chance to consume the whole opinion, which can be downloaded here or obtained through a few clicks from this site, but its looks like another incredible chapter in this evolving story. In addition, I am very proud to say that the Second Circuit also is the first court to give me the honor of seeing this blog cited (see footnote 9).

Download 2d_circuit_penaranda.pdf

Here's how, at the close of the opinion, the court articulates the three certified questions:

To afford the Supreme Court an opportunity to adjudicate promptly the threshold issue of whether Blakely applies to the federal Sentencing Guidelines, we therefore certify the following three questions (the first pertains to both cases pending before us, the second to Penaranda’s case, and the third to Rojas’s case):

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

P.S. Those of you who might think the use of "in banc" (rather than "en banc") is a typo need to brush up on the collective writings of my former boss, Judge Jon O. Newman.

July 12, 2004 at 06:07 PM | Permalink

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» I didn't know this was even possible: from The Volokh Conspiracy

The U.S. Court of Appeals for the Second Circuit, sitting en banc, just certified questions related to the constitutionality of ... [Read More]

Tracked on Jul 12, 2004 7:51:02 PM

» Now That's Some Fireworks! from Tutissima Cassis
As first reported by Sentencing Law and Policy, the Second Circuit has a Blakely ruling, and it's a doozy. They've certified the question to Supreme Court of whether Blakely applies to the Sentencing Guidelines. I have never seen a question... [Read More]

Tracked on Jul 12, 2004 9:14:48 PM

» Federal Sentencing Guidelines: Constitutional? from The Legal Reader
Last Friday, the Seventh Circuit said the Guidelines were unconstitutional after Blakely. Today, the Fifth Circuit unanimously held that the Guidelines ARE constitutional, creating a circuit split. Not to be outdone, the Second Circuit, in an en banc o... [Read More]

Tracked on Jul 12, 2004 9:35:35 PM

» Federal Sentencing Guidelines: Constitutional? from The Legal Reader
Last Friday, the Seventh Circuit said the Guidelines were unconstitutional after Blakely. Today, the Fifth Circuit unanimously held that the Guidelines ARE constitutional, creating a circuit split. Not to be outdone, the Second Circuit, in an en banc o... [Read More]

Tracked on Jul 12, 2004 9:35:52 PM

» Certified from Falconred Goes to Law School
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» More decisions on Blakely from Houston's Clear Thinkers
The decisions are coming down fast and furious from the various Circuits Courts of Appeal in regard to the recent Supreme Court Blakely decision, which was noted in these earlier posts. Professor Berman over at Sentencing Law and Policy is... [Read More]

Tracked on Jul 12, 2004 10:38:46 PM

» More decisions on Blakely from Houston's Clear Thinkers
The decisions are coming down fast and furious from the various Circuits Courts of Appeal in regard to the recent Supreme Court Blakely decision, which was noted in these earlier posts. Professor Berman over at Sentencing Law and Policy is... [Read More]

Tracked on Jul 12, 2004 10:53:37 PM

Comments

Wow! You might be the first blog cited in an appellate opinion: you are certainly the first I know of. Congratulations.

Posted by: C&F | Jul 12, 2004 6:57:06 PM

Congrats! Your fantastic resource work on Blakely and help to a hundred thousand head-scratching attorneys and defendants has not gone unnoticed! Not by the 2nd Circuit, and not by us. If you haven't heard it from anyone else, thank you. You've done the bar and america a real service. Thank you. Thank you. Thank you.

Posted by: Tom T. | Jul 12, 2004 7:07:39 PM

Thanks, I'm blushing.

Posted by: Doug B. | Jul 12, 2004 7:33:10 PM

Wow. Since 1946, only three certificates have been accepted by the court.

Posted by: SDNY Clerk | Jul 12, 2004 10:45:23 PM

Anyone want to make predictions about the outcome (and timeline) for the consideration of this certification?

P.S. For anyone curious but perplexed about in banc versus en banc, here a clue: 55 Brooklyn L. Rev. 355, n.1.

Posted by: Doug B. | Jul 13, 2004 1:48:36 PM

Please provide helpful information to better understand what the Sentencing Law and Policy - Blakely Law. Please include resources and/or articles that can explain what the Blakely Law is and who would be effected and how they will be effected.

Thank you your reply is greatly appreciated.

Michelle

Posted by: Michelle | Aug 12, 2004 8:19:39 PM

i am trying to find out if the Blakely Law can help my brother n law get his sentenced reduced
in a federal prison? I have been told it will knock as much as 6(six) years of his sentence.
Is this possibe? Would u please e-mail me or mail me all the info about it.
Thank You
Donna Isbell
my address:
78 Scurlock Rd
Dora, AL 35062

Posted by: donna isbell | Dec 12, 2004 2:17:47 PM

Please provide helpful information so I can better understand what the Sentencing Law and Policy - Blakely Law Means. Please include resources and/or articles that can explain what the Blakely Law is and who would be effected and how they will be effected.

Thank you your reply is greatly appreciated.

Posted by: Donna Conley | Jan 11, 2005 8:30:39 PM

What part of this Blakely Law would help a prisoner that was convicted of Interstate trafficing of Child Pornography,was incarcerated and sentenced for 5 years without parole,first offense,was entrapped by the FBI sending the porn pics to him in a chat room and then convicted him ? Would the Blakely LAW help him ? He did not make or take pics,he only forwarded in a chat room what the FBI sent to him then they charged him and sent him to Federal Prison for 5 years ! This is very UNCONSTITUTIONAL !!! PLease reply ! THANKS !

Posted by: Linda LeBlanc | Jan 11, 2005 8:41:00 PM

What part of this Blakely Law would help a prisoner that was convicted of Interstate trafficing of Child Pornography,was incarcerated and sentenced for 5 years without parole,first offense,was entrapped by the FBI sending the porn pics to him in a chat room and then convicted him ? Would the Blakely LAW help him ? He did not make or take pics,he only forwarded in a chat room what the FBI sent to him then they charged him and sent him to Federal Prison for 5 years ! This is very UNCONSTITUTIONAL !!! PLease reply ! THANKS !

Posted by: Linda LeBlanc | Jan 11, 2005 8:41:34 PM

I am the wife of a now federal prisoner, he took it to trial because he knew his innocense, they violated his speedy trial rights, also people who testified was not in his inditement,and they allowed so many lies. They had no tape of him, or pictures doing anything, they were looking for his brother and when they couldn't get him they pinned my husband. Please direct me and help me help him in anyway I can! He is innocent and has always been a working family man.

Posted by: LaDoshia Sparks | Jan 24, 2005 10:50:59 AM

what is the information on blakelys -retroactive part of the law???????

Posted by: brenda | Jan 31, 2005 6:38:32 PM

my son lost on his case because of the retroactive on blakely. can you explain that part to me???? in plain english. they said he had to use it while still on appeal. please help!!! his release date is 2010.

Posted by: brenda gardiner | Jan 31, 2005 6:55:07 PM

Can you provide any information regarding the blakely's law.

Posted by: Jannelle Williams | Feb 18, 2005 8:47:25 PM

My sister is incarcerated in a FMC for bank fraud and I wish to know whether Blakely applies to her 34 month sentence and where to obtain blank forms.

Posted by: robert knight | Apr 19, 2005 9:54:48 AM

Can you provide me with any information on the Blakely Law?

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Posted by: disbelief | Oct 19, 2005 12:16:51 AM

I just wanted to post to let every one know that I have 2 choices my 2 children or my husband. If I choose my children I go into povertiy if I choose my husband (convicted sex offender) I loose my children. My husband is a great man who never commited a sex crime but as we all know it does'nt matter. He was in trouble with the law already and had no choice to take a deal or spend the rest of hias life in prision. Iam angry and unsure were to go with this. I can't beleave that a man who wants no more then to prove himself and to be a father has to loose his home, his wife , and his chance to be a dad. For somthing that never happened. If any of you have suggestions please email me I need all the prayers and support I cant get. I dont want to have to choose. thank you stphmount@yahoo.com

Posted by: stephanie | Nov 2, 2005 5:04:18 PM

Can you help me in any way? My son was convicted at 19 years old with 2nd degree assult with a firearm enhancement charge. He received an 8 year sentece in WA. State.He has been in prison over two years now. He had never agreed to the firearm enhancement(extra 3yrs.,no good time off)in his plea. They just added it on at the last minute in court. They also went beond the sentencing guidelines for the 2nd degree assult.According to the Senate Bill 5477/Sentencing Reform Act passed in WA. State,my son should have never gotten an exceptional sentence.There was no aggervating curcumstances nor anything to support an exceptional sentence.He was not given any reason as to why from the judge, and they did not provide any facts as to why.He was given no choice or say in the sentencing.It was never explained! How could I file to modify sentence? How can we get the firearm enhancement taken off?Does the Blakely Law apply? Please anything that you or anyone can do to help me, I would be so gratefull!I am just so totally lost. No lawyer that I have contacted will even really talk to me, or even know anyting about this kind of case. Again, ANYTHING that you could do or tell me would help. Thanks so much!
RJRoseberry@wmconnect.com

Posted by: Rita | Jan 21, 2006 9:46:32 PM

my husband has been a victim of illigal stop and search(boston police) in the proccess he found a illigal firearm(under state law) HE REFUSED TO COP OUT. IN THE PROCCESS OF GOING TO COURT HIS ATTORNEY PROVIDED ALL INFORMATION(IN WHICH SHOULD OF BEEN DISSMISSED. WELL THE JUDGE ALLOWED THE D.A TO GET OTHER COURT DATES ONLY TO BUILD A FED CASE ON HIM.EITHER WAY IF HE WOULD OF COPPED OUT ON THE STATE CHARGE(WITH THE ILLIGAL STOP AND SEARCH(TERRY LAW, DEPINZA VS COMMOMWEALTH)THE FEDS COULD OF STILL CAME BACK TO CONVICTED HIM TO GET MORE TIME AFTER THE FACT. WELL I MUST SAY, HE DOES HAVE A CRIMINAL RECORD, IN WHICH ME AND HIM HAD SOME DOMESSTIC ISSUES(I RECANTED MY STATEMENT WILLINGLY)HE SERVED TIME FOR IT CAUSE HE COPPED OUT.WELL THIS NEW CHARGE CLASSIFIED HIM AS A ACC. i BEEN READING ON FED LAWS AND THEY ARE STIFF(PERHAPS ONLY FOR FELONS...I HAVE BEEN FOLLOWING HIS COURT HEARINGS(TRUTHFULLY THE POLICE WAS LYING(IF I WAS A JURY , I WOULD FEEL THEY WAS TRYNA GET A CONVICTION , TO MAKE A STATEMENT. BOSTON HAS BEEN CRAZY WITH MURDERS(I AGRRE) BUT NO ONE HAS BEEN GETTING CAUGHT.BASICLLY WHAT I NEED IS SOME INFORMATION TO HELP US FIGHT THE FACT THAT HE IS SOON TO DO 15YRS(BECAUSE OF HAVING 3 FELONS.(THATS CRAZY) NO DRUG OR FIREARM CONVICTIONS. ONLY Because HE BASICLLY HAS BEEN A PRIOR CRIMINAL IN CHARGES HE HAS DONE HIS TIME FOR. i AM ONLY 1 VOICE, FOR NOW. i THINK IT SHOULD BE A CHANGE IN THE JUDICIAL SYSTEM. I UNDERSTAND THAT YOU DO A CRIME PAY THE TIME(BUT WHAT HAPPENS IF YOU AS A INDIVIUAL KNOW THE LAW IS NOT IN YOUR FAVOR.I DONT FEEL PITTY FOR PEOPLE WHO BREAK THE LAW. PERHAPS INNOCENT UNTIL PROVEN GUILTY.I DONT UNDERSTAND HOW CAN YOU MURDER AND GET 15YRS, THEN WALK FREE? YEA SOMETHING HAS TO GIVE. AFTERALL CAN SOMEONE GUIDE US IN SOME SORT OF DIRECTION TO GET SOME JUSTICE ... YOU CANT BELEIVE THAT THE LAW CAN BECOME SO UN FAIR. IF WE HAD LOTS OF MONEY, OR GOT IN GOOD WITH THE SYSTEM , I GUESS YOU CAN SAY(HIM SITTING FOR 2 YEARS, COULD B TIME SERVED? WELL WE ARE GOING TO FIGHT THIS.COPS ARE LYERS ALSO. I BELEIVE IF THEY WANNA CLEAN UP THE GUNS , THEY SHOULD LOOK IN THE MIRROR. WE HERE IN SOCIETY ARE BATTLING SO MUCH... YOU CANT EVEN HAVE A CHANCE ON A JOB(IF YOU EVER HAD A CONVICTION.ITS CRAZY, I BELEIVE THE FEDS NEED TO STEP THEIR GAME UP , AND HELP BOSTON POLICE GET SOME MURDERS SOLVED. THEY WANT TO MAKE STATEMENTS , BY THROWING OUR MEN, CHILDREN IN JAIL(LIKE DOGS) THEY GET NO LOVE....EVERY AND ANY RIGHTS WE SUPPOSE TO HAVE(THE LAWYER GIVES BAD NEWS) WHATS WRONG WITH THAT PICTURE? 15YRS(WOW) THE NEXT THING OUR MEN ARE GONNA SAY IS(WHY NOT KILL!) JUST LIKE A THEIF(GO BIG) THE SYSTEM IS TURNING OUR LOVE ONES INTO ANIMALS.I DO BELEIVE IN JUSTICE(BY ALL MEANS) BUT REALLY THE LAW NEEDS TO BE RE WRITTEN(ATLEAST) SOME PARTS OF IT.IF ANYONE HAS ANY PUBLIC INFORMATION TO HELP OUR CASE(PLEASE REPLY) A BROKEN FIREARM, DONT WORK, NO BODIES(AND HE FOUND IT! YEA HE WAS IN A HIGH CRIME AREA(SO I LIVE IN BOSTON.I CANT WALK THE STREETS? LET THE LAW ENFORCEMENT , AND THE SYSTEM TALK ABOUT ALL THE DRUGS AND GUNS THEY ARE INVOLVED IN.I MAY SOUND ANGRY(I AM) BECAUSE THERES NO REASON FOR THE FEDS TO STEP IN, WHEN THERE WAS NOT CASE(UNDER THE STATE LAWS) WHY MAKE EXAMPLES(AND NO CONSTITUSTIONAL RIGHTS) HE HAS BEEN FIGHTING THIS FOR 2 YRS..NO BIG BREAK.THEY CANT WAIT TIL HE COP OUT(THEYRE READY TO SMOKE HIM.WHILE EVERDAY SOMEONES MURDER IS REMAINING UNSOLVED.ITS NOT UN COMMON TO COME ACROSS A GUN IN BOSTON STRRETS.the law just not fair(at all)PLESE PROVIDE, ANY INFORMATION THAT MAY HELP THIS CASE.....

Posted by: tan | Sep 3, 2007 4:58:21 AM

hi, i am very angry to learn that my husband has been convicted of 15yrs by the feds . Illigal stop and search.Yea we do have a request for a new attorney, and an appeal(who knows how long?)well basiclly for all us poor people of society whom have love ones in the system(we) need to step up on our judicial system. Im sure everyone must think when it comes to the police, attorneys, and judges. we fell trapped, exspecially with no money.perhaps a lot of our love ones whom stand victim(because of past convictions feel no hope. therefore in the eyes of the so called law , they intend to make examples of us. I really dont understand how the laws are written. truthfully i dont think they are fair.remember there have to be a end to all this conspiracy in our judicial system... now my husband is bounced around state to state(me not knowing if he will survive out of it) listen readers ther must b a ending... and i hope you are a true beleiver that our laws are not fair...networking can become some type of change to making our jucicial system more fair. I am sooooo angry and hurt. I see and hear about the rich getting away with so much.Why? are there rules only for people with money? you do the math..... someone is not honest about our constitutinal rights... in the future dont give up, I think someday we will seek justice for our love ones.tntlowdown@aol.com... keep the faith.Illigal stop and search? how.........

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Posted by: laptop battery | Oct 14, 2008 5:19:24 AM

Please provide helpful information so I can better understand what the Sentencing Law and Policy - Blakely Law Means.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:17:52 AM

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