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August 12, 2004

Second thoughts about the Second Circuit

The circuit court for which I worked for two years, and which made me proud with its certification gambit in Penaranda (background here), has now disappointed me with its work today in US v. Mincey (details here). I can conceive of pragmatic reasons for why the Second Circuit might want to "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines." But in Mincey, the Second Circuit provides no jurisprudentially sound reasons for how after Blakely it can still "adhere to the law of this Circuit" and have its courts "continue fully to apply the Guidelines."

Perhaps the Second Circuit believes the distinction between administrative and statutory guidelines permits judicial enhancements based on a preponderance of the evidence in the federal system; but the court neither articulates nor defends this position in Mincey. Perhaps the Second Circuit believes that application of the old guidelines until the Supreme Court renders a decision on their constitutionality will be least disruptive and can still preserve defendants' rights during this period of uncertainty; but the court neither articulates nor defends this position in Mincey. In other words, Mincey is really just an order, not a decision -- akin to what the Fourth Circuit has done so far in Hammoud. But the Fourth Circuit at least has said a fuller explanation of its order will be forthcoming in full written opinions. It seems that all we will be getting from the Second Circuit is this per curiam opinion in Mincey. For a host of reasons, I wish the Second Circuit at least tried to do more.

I am also left to wonder if this means that all the thoughtful district judges in the Second Circuit who had thoughtfully concluded that the federal guidelines could not be fully applied after Blakely (details here and here and here and here and here and here and here and here and here) must now go back and apply the guidelines they believe are constitutionally problematic.

August 12, 2004 at 10:06 PM | Permalink

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Comments

I am a cja attorney currently working on an a second circuit appeal containing a Blakely issue. Given the court's announcement in Mincey that it will adhere to its pre-Blakely jurisprudence until Booker/Fanfan is decided, how do I effectively preserve the issue in my opening brief? The appeal will probably not be heard until after Booker/Fanfan is decided.

Posted by: eileen shapiro | Aug 23, 2004 3:24:21 PM

I am a cja attorney currently working on an a second circuit appeal containing a Blakely issue. Given the court's announcement in Mincey that it will adhere to its pre-Blakely jurisprudence until Booker/Fanfan is decided, how do I effectively preserve the issue in my opening brief? The appeal will probably not be heard until after Booker/Fanfan is decided.

Posted by: eileen shapiro | Aug 23, 2004 3:24:29 PM

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