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November 4, 2004

One month and counting...

Today marks exactly a month since Booker and Fanfan were argued, and the federal sentencing world still awaits an opinion. Obviously, with news of Chief Justice Rehnquist's poor health and a full SCOTUS caseload, it is perhaps unsurprising that the (likely divided) Court has not yet been able to clarify the state and fate of the federal sentencing world after Blakely. However, as suggested here, I think we will be seeing a decision handed down relatively soon.

The recent decision by US District Judge Stewart Dalzell in US v. Cropper, 2004 U.S. Dist. LEXIS 21949 (E.D. Pa. Nov. 2, 2004), highlights why a decision in Booker and Fanfan cannot come soon enough for the Justice Department. Cropper involves the government's effort, after filing a superceding indictment with "Notice of Additional Factors" involving various (non-conviction) criminal history facts, to have the factors submitted to the jury "either in the Government's case-in-chief or in a bifurcated trial." Notably, the defendant "expressed vigorous opposition to submitting any of the factors to the jury at the trial that will begin on November 8, 2004."

Here's an abridged account of Judge Dalzell's explanation for his decision to "decline to submit the sentencing factors to the jury:"

We are especially puzzled at the Government's position in view of what it said to the Supreme Court of the United States in United States v. Booker and United States v. Fanfan, Nos. 04-104 and 04-105, which were argued on October 4, 2004..... [There] the Acting Solicitor General [asserted that] "[r]eplacing the statutory gap in the Guidelines system with a novel system of jury trials for sentence-enhancing facts would be fraught with the same grave difficulties [deemed improper in US v. Jackson, 390 U.S. 570 (1968)]. Indeed, it would require judicial legislation on a far greater scale than the approach rejected in Jackson, because the Guidelines apply in every federal criminal prosecution."

Although we have elsewhere predicted that the Supreme Court will apply Blakely to the Guidelines, see United States v. Leach, 325 F. Supp. 2d 557 (E.D. Pa. 2004), we did not predict the consequences of such a holding beyond Guideline-based enhancements. A review of the transcript of the October 4, 2004 oral argument in Booker and Fanfan reveals that the consequences beyond what we held in Leach are very much up in the air. Until the Supreme Court decides Booker and Fanfan, however, it seems to us not extravagant to take the Government at the word expressed by the Acting Solicitor General in Booker and Fanfan rather than at the word of the local prosecutor here.

November 4, 2004 at 11:34 AM | Permalink

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