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July 13, 2004

Monday Recap: Jurisprudential Home Run Derby

With so much happening on Monday -- a dozen posts without covering all I heard -- I thought a quick recap of highlights might be of use. Though I won't be able to equal the play-by-play of the ESPN folks on during the MLB Home Run Derby, I will try to pepper this recap of the jurisprudential moonshots with a little helpful commentary.

1. The day started with lots more news of interesting developments in various federal district courts (see here and here and here). Not included in earlier reports was the news I received from DC that District Judge Ellen Huvelle in US v. Alston-Graves held the Guidelines "invalid" per Blakely and also held that enhancements are not severable from the rest of the Guidelines. And I heard from a reporter that EDNY District Judge Jack Weinstein convened a federal jury trial solely to decide on a defendant's sentence. It would seem that the federal guidelines are being declared unconstitutional in many district courts, with a wide variety of remedies being explored.

2. Then, around mid-day, the Fifth Circuit issues its opinion in US vs. Pineiro holding the federal sentencing guidelines constitutional (details here). The reasoning tracks Judge Easterbrook's points in dissent from the Seventh Circuit's contrary holding in US v. Booker from Friday (details here), stressing the distinctions between the statute-based guideline scheme at issue in Blakely and the administrative-agency-based guideline scheme in the federal system. Among the interesting features of Pineiro is that, factually, the defendant could claim great prejudice from not having respected his "Blakely right" to jury findings beyond a reasonable doubt: his enhancements were based on the sentencing judge's drug-quantity fact-finding after a jury refused to make the same findings at trial and on the judge's questionable leadership role finding based on evidence that "was conflicting on many issues."

3. Not missing another chance to be first, Judge Paul Cassell of Utah then issued another opinion in US v. Croxford to address final arguments the government raised in defense of the guidelines (details here), and in this opinion Judge Cassell was the first to respond directly to Judge Easterbrook's and the Fifth Circuit's efforts to find Blakely inapplicable to the federal guidelines. Judge Cassell reaffirmed his initial declaration of the guidelines as unconstitutional, and in so doing also became the first to cite this blog in a written opinion (see footnote 33). He also, I believe, gets credit for being the first to describe the US Sentencing Commission as an "odd duck."

4. Appropriately batting clean-up in this order, the Second Circuit closed the day by handing down, in banc, US v. Penaranda, which sought to clean up the federal mess by certifying three questions about Blakely's reach to the Supreme Court (details here). In addition to taking a slight swipe at Judge Cassell for heavy reliance on the Blakely dissents in his Croxford opinions (see footnote 6), the Second Circuit decision became the first circuit court opinion to cite this blog (see footnote 9). More importantly, the Second Circuit makes in Penaranda a compelling argument for swift action by the Supreme Court. It notes that thousands of past, present and future federal cases are in doubt after Blakely, and urges "an expedited briefing and hearing schedule, in order to minimize, to the extent possible, the impending crisis in the administraton of criminal justice in the federal courts."

Helpfully, many of these developments (and even some others) are reviewed in this Washington Post article.

July 13, 2004 at 02:41 AM | Permalink


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Not missing another chance to be first, Judge Paul Cassell of Utah then issued another opinion in US v.

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:15:12 AM

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