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February 22, 2005

More SCOTUS Booker GVRs

The Supreme Court is back in action today.  Though we did not get either of the sentencing opinions I am eagerly awaiting (background here), we did get a bunch of Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker).  As detailed in this list of orders, there were more than 30 Booker-inspired GVRs today.

Of course, the (newly renovated) SCOTUSblog is the place to go for all the Supreme Court action.  Among the High Court's work today is a 5-4 decision on a double jeopardy claim in Smith v. Massachusetts (syllabus here), which produced unusual coalitions of Justices (and different coalitions than in Blakely, though again Justices Stevens, Scalia, Souter and Thomas are together on the majority opinion which, per Justice Scalia, reverses a state conviction).

February 22, 2005 at 10:36 AM | Permalink

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Comments

Do you know, or does anyone here know, whether they have GVR'd any cases where the Booker/Blakely issue was *not raised in the Ct. of Appeals* or in the Dist. Ct., but where the case arises on direct review and the petition was filed after Booker claiming plain error? Thanks for any info.

Posted by: Sam Heldman | Feb 22, 2005 11:44:11 AM

I don't know in particular about petitions filed _after_ BOoker, but for petitions filed post-Blakely, pre-Booker, the short answer is "yes they have." I am familiar with at least one GVR where there is no record in the briefs on appeal or in the filed appellate opinion of any argument re: impropriety of the sentence imposed. While I haven't had a chance to look at the petition for cert., the issue must have been raised there (one would hope). But my theory for the moment is that SCOTUS just decided to summarily remand _any_ petition that had the foresight to mention Blakely at least once, without reviewing whether the argument had been raised below.

Posted by: Jason | Feb 22, 2005 12:50:04 PM

cool. thanks.

Posted by: Sam Heldman | Feb 22, 2005 12:53:19 PM

Sam:
I have filed a petition for cert post-Booker which requested GVR because our client had been sentenced under the mandatory guidelines scheme. (The only enhancements had been for prior convictions, so there was no Sixth Amendment violation.) The government has already responded and agreed that the matter should be GVR'd so that the court of appeals can deal with the sentencing issue first. The Court hasn't ruled yet, however.
Best,
Anon Fed Defender

Posted by: Anonymous | Feb 22, 2005 1:28:47 PM

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