Watching the Blakely cataclysm/disaster/havoc

In his decision declaring the U.S. Sentencing Guidelines unconstitutional, Judge Cassell spoke of the "potentially cataclysmic implications" of his holding. Similarly, Justice O'Connor in her dissent lamented the "disaster" and "havoc" to follow from the majority's ruling. Whatever adjective fits best, it is quite a spectacle to watch what is happening. First, here and here are two Washington Post articles describing federal sentences that already have or could soon be altered as a result of Blakely.

Second, attached here in PDF form is a portion of the transcript from a federal sentencing on June 28, 2004 by Maine District Judge D. Brock Hornby in US v. Fanfan. Judge Hornby concludes that the U.S. Sentencing Guidelines are "exactly comparable to the Washington state scheme in all respects material to the Blakely decision." Then, Judge Hornby concludes that he cannot consider at sentencing relevant conduct drug amounts beyond the 500 grams of cocaine powder as found by the jury, he can not include "crack" testified to but not charged in the indictment and not found by the jury and he can not apply a role enhancement. Thus, despite a pre-sentence report calculating an offense level of 36 and a guideline sentencing range of 188-235 months, Judge Hornby decides Blakely requires reducing that to an offense level of 26 (500 grams powder = offense level 26) for a sentencing range of 63-78 months. Exercising his discretion and finding the defendant was a leader, he sentences at the maximum within the range, 78 months, a fine and 5 years supervised release.
Download hornby_postblakely_decision.pdf