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July 29, 2004

Your morning Blakely fix

As he does so well, Howard Bashman at How Appealing has a collection of today's newspaper articles discussing Blakely here. Though all the articles include interesting Blakely tidbits, especially noteworthy is this article's discussion of the plans of US District Chief Judge G. Patrick Murphy (SD Illinois) to deal with Blakely.

For a more intense Blakely experience, let me highly recommend this memo to all readers, even though it is focused on the application of Blakely in California. Because the memo is written by sentencing judges for sentencing judges, its sections covering "Practical Application of Blakely" are especially interesting. And it is almost comical how many times the memo highlights issues that Blakely raises but does not resolve, which leads the authors to forecast that "appellate courts may disagree on the extent of Blakely's application in California, even as to whether it applies at all."

July 29, 2004 at 08:23 AM | Permalink

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Apart from the discussion of pending cert petitions, it’s worth noting that the Court already has granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: U.S. v. Shepard, 03-9168

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard had pleaded guilty and been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The official “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.

Bill Fick
Foley Hoag LLP
Boston

Posted by: Bill Fick | Jul 29, 2004 5:11:07 PM

While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:12:47 AM

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