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February 12, 2007
Ninth Circuit finds Double Jeopardy bar to government sentencing appeal
The Ninth Circuit today has an interesting Double Jeopardy ruling today in US v. Blanton, No. 05-50302 (9th Cir. Feb. 12, 2007) (available here). Here is the decision's introduction and conclusion:
We must determine whether the Fifth Amendment's Double Jeopardy Clause prohibits the government from appealing a district court's allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement....
In summary, we agree with Blanton that the district court resolved the issue of guilt or innocence in his favor, and that the Double Jeopardy Clause bars this appeal. See Ogles, 440 F.3d at 1103-04. It is immaterial whether the district court's interpretation of the relevant legal issue was correct. Id. at 1103; see also Smalis, 476 U.S. at 144 n.7; Smith v. Massachusetts, 543 U.S. 462, 469 (2005). Under 18 U.S.C. ยง 3731, therefore, the government is without authority to appeal.
There are significant Apprendi-related aspects to this ruling, and I think it may be out of step with some other circuit rulings. It thus will be interesting to see if DOJ seeks en banc review or cert in Blanton.
February 12, 2007 at 02:07 PM | Permalink
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Comments
Please fix the link to the opinion
Posted by: Jacob Berlove | Feb 12, 2007 2:44:13 PM
Maybe I am missing something, but it seems to me that if the determination of ACCA status is a fact question under the governing statutory provision, then it must be found at trial or not at all. The mere fact that alternate sentencing schemes could have made the question a legal question doesn't seem to allow for appellate cure here, as that would have the effect of treating a factual question as a legal one.
Posted by: federalist | Feb 12, 2007 3:31:46 PM
Mr. Berlove, it's not hard to find
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/FC38FF0571D2CFE48825728000569F58/$file/0550302.pdf?openelement
Posted by: | Feb 12, 2007 3:36:41 PM
Link fixed, sorry...
Posted by: Doug B. | Feb 12, 2007 3:55:08 PM
Lord almighty, if this doesn't provoke a cert grant on the scope of Almendarez-Torres, the question is hopeless.
So, uh, in the Ninth Circuit...
They distinguish Almendarez-Torres in cases of juvenile adjudications?
They put such sentencing allegations related to the defendants criminal history in the indictment?
They give you a jury trial on them?
They bifurcate to make sure the right they give you here but nowhere else doesn't prejudice you at trial?
They apply double jeopardy protections whenever they apply Apprendi?
Even when the fact in question apply to criminal history, and in spite of Monge?
What else do they get out there? Pats on the head and hugs from the district judge to accompany every downward variance? Special crayons? Ponies?
They are living on a different freakin planet out there. Hey, more power to them, but the difference between the fates of criminal defendants depending on whether they happen to be prosecuted in Sentencing Universe I (Circuits 1-8, 10-11) or Paralell Sentencing Universe 1A (Circuit 9) should get someone's attention upstairs.
Maybe I'm just jealous, but
TRANSMISSION FROM RED CIRCUIT TO BLUE CIRCUIT... SOS...SOS...SOS...SOS...SOS
Posted by: RW | Feb 12, 2007 4:33:13 PM
