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August 19, 2004

It really is the end of the world, when...

this blog gets cited as "official authority." Yes, you read that crazy bit of news right. I just received (and make available below) a copy of an order entered today in US v. Onunwor, NO. 1:04-CR-211 (N.D. Ohio Aug. 19, 2004), by US District Judge James Gwin of the Northern District of Ohio. Here's the heart of the sentencing discussion:

With regard to the sentencing factors, the Court notes that the Sixth Circuit has recently determined that the Federal Sentencing Guidelines remain constitutional despite Blakely. See United States v. Koch, No. 02-6278 (6th Cir. Aug. 13, 2004). Because the Court cannot locate an official opinion published on this case, it presumes accurate the following order, as quoted on the Sentencing Law and Policy weblog [the opinion then quotes the Koch order and cites my post here, including the title "I'm home . . . and grumpy about the Sixth Circuit"]

Because the Sixth Circuit has instructed United States District Courts to apply the Guidelines, but also to provide as an alternative the sentence that the Court would enter under a discretionary sentencing regime, the Court intends to do just that. Thus, the Court will not bifurcate the trial into a "guilt phase" and a "sentencing phase." Nor will the Government need to put on at trial any additional evidence regarding sentencing factors. The only way such additional evidence would be necessary is if the Supreme Court were to rule that the Guidelines are severable. Only then will the Government need to prove sentencing factors to a jury, beyond a reasonable doubt. Should the Supreme Court later determine that the Guidelines are non-severable --- FOOTNOTE 1: For the reasons articulately expressed by Judge Gertner in United States v. Mueffelman, No. 01-CR-10387-NG (D. Mass. July 26, 2004), the Court finds that this outcome is the most likely. --- once any Guideline runs afoul of Blakely, the entire Guideline system will fall. Should that occur, we will return to a regime of discretionary sentencing, which of course would not require the Government to prove sentencing factors to a jury, beyond a reasonable doubt.

Needless to say, this is an important decision for reasons other that this (slightly comical) citation, and for me is just another remarkable example fo the different forms of chaos Blakely has engendered.
Download onunwor_order.pdf

August 19, 2004 at 02:44 PM | Permalink

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Comments

I am a defense attorney. I have read this blog regularly for blakely news. The thing I find most appalling is that the United States Attorneys Office and a number of courts are taking the position that the guidelines can still be applied as if blakely were never decided. Presumably they differentiate based on the difference between a direct act of Congress and action by an agency using delegated power. Congress cannot delegate the power to avoid the requirements of the Constitution. Congress has no such authority. The Sixth Amendment applies just as much to the guidelines promulgated by the USSC as it would if Congress enacted the guidelines directly. Any other result means that our Constitutional Rights have now become privileges and we no longer have a government that is even theoretically bound by the Constitution.

Posted by: James Rice | Aug 20, 2004 4:17:41 PM

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