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September 7, 2005

Does Blakely/Booker trump Harris?

In an opinion handed down last week in US v. Garner, 2005 WL 2133606 (N.D. Ohio Sept. 1, 2005), Judge David Dowd of the Northern District of Ohio examined whether "the [sentence-enhancing] 'fact' (quantity of cocaine attributable to the defendant) must be submitted to the jury and proved beyond a reasonable doubt in a situation where the 'fact' results in a mandatory minimum sentence which exceeds the range calculated by the court in the process of determining the post-Booker advisory guideline range."   Or, to formulate the issue in another way, could Blakely/Booker trump Harris when they are in tension?

Notably, as detailed here, at least one state court has concluded that Blakely trumps Harris when they are in tension.  And Judge Dowd, struggling with many novel issues in the context of a case in an unusual procedural posture, come to this conclusion:

In the Court's view, the only two sentencing alternatives facing the Court are the imposition of the mandatory minimum sentence of 120 months, as endorsed by the reasoning of Harris, supra, or because of the language in the Booker opinion written by Stevens, the imposition of a sentence beginning with the advisory guideline range of 87 to 108 months based on the Sixth Circuit approved calculation of the amount of cocaine attributable to Garner, as earlier found by the undersigned judge. The Court elects to impose a sentence based on the advisory guideline calculation, subject to the provisions of 18 U.S.C. § 3553(a) rather than the potentially harsher sentence of 120 months. The Court hereby schedules re-sentencing....

September 7, 2005 at 01:58 PM | Permalink

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