Taking Blakely to the (en) banc

Yet another reason for the Supreme Court to move fast on a Blakely case is to try to reduce the stunning amount of lower court judicial time and energy being occupied with efforts to figure out what Blakely means for the federal system. As detailed in this article, renown sentencing lawyer Benson Weintraub is seeking to have the Southern District of Florida district judges (all 24 of them) rule en banc on the constitutionality of the federal sentencing guidelines in the wake of Blakely. Though en banc rulings by district courts are rare, in this setting Weintraub's motion, which seeks a uniform standard for post-Blakely sentencing in the district, seems to make a lot of sense. Otherwise, there is a reasonable risk that, as in Utah, different courts in the same district will apply considerably different sentencing standards.

Similarly, I have be speculating lately about whether the Sixth Circuit will or should seek to consider en banc the case of US v. Montgomery. As detailed here and here, the Montgomery ruling is bold, opaque and likely does not represent the views of a majority of active judges on the Sixth Circuit. But prudential considerations might suggest that active judges in the Sixth Circuit leave this decision alone. First, it is all but inevitable that the Supreme Court will speak to these issues (and soon, I hope); diverting the time and energy of all the active Sixth Circuit judges to consider and rule on this issue may not be wise given that any en banc ruling would be controlling law only until the Supreme Court speaks. Second, because just the order granting en banc review serves to vacate the original panel decision, sentencing rules within the circuit would be again uncertain in the period between the granting of en banc review and the rendering of a decision by the en banc court. Even if active Sixth Circuit judges do not think Montgomery is a sound decision, they might reasonably conclude that a consistent (unsound) ruling is better for the time being than circuit uncertainty and possible intra-circuit district court variation in sentencing approaches. However, this article from the Toledo Blade unsuprisingly notes that district judges in the Sixth Circuit are still uncertain about how best to proceed with sentencings.

Finally, you could take to the bank my prediction that Ernie Els was the player to beat at the British Open. And congratulations to Todd Hamilton for doing just that.