The 5th Circuit Speaks (and we have a circuit split)!!

I have just heard that the Fifth Circuit just held the federal sentencing guidelines constitutional in US vs. Pineiro, no. 03-30437. Here's the link. Chief Judge King, writing for a unanimous panel that included Judges Barksdale and Pickering, says at the outset:

This court assuredly will not be the final arbiter of whether Blakely applies to the federal Guidelines, but the unremitting press of sentencing appeals requires us to produce a decision. We have undertaken to discern, consistent with our role as an intermediate appellate court, what remains the governing law in the wake of Blakely. Having considered the Blakely decision, prior Supreme Court cases, and our own circuit precedent, we hold that Blakely does not extend to the federal Guidelines and that Pineiro’s sentence did not violate the Constitution.

In Pineiro, the presentence report held the defendant responsible for amounts of drugs much greater than the amounts found by the jury at trial and further recommended a sentence enhancement for his leadership role in conspiracy. [N.B.: iffy facts on the leadership role issue suggests that this is a case where the burden of proof, and not just the fact-finder, could be significant]. The Fifth Circuit worked through all the past federal decisions finding the federal guidelines scheme constitution and explained:

Undeniably, Blakely strikes hard at the prevailing understanding of the Guidelines. The Guidelines, unlike Washington’s Sentencing Act, are not statutes, but they are nonetheless binding on sentencing courts. ... But Blakely, which did not actually involve the federal Guidelines, is not the only case that we must consider. While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the Guidelines. That examination reveals that a number of the Court’s prior cases, including cases that reject various constitutional challenges to the Guidelines, are founded on the proposition that there are constitutionally meaningful differences between Guidelines ranges and United States Code maxima....

These cases, and others like them, do not discuss the Sixth Amendment right to a jury trial, and we do not pretend otherwise. What is true, however, is that the Supreme Court has repeatedly blessed the Guidelines and upheld them against sundry constitutional challenges, often employing the proposition that the United States Code, and not the Guidelines, establishes maximum sentences for offenses. The Supreme Court’s cases, and ours, have articulated a particular vision of the interaction between the Guidelines and the United States Code, and it is a vision that has held constitutional meaning. To reject that view of the Guidelines would not directly 'overrule' any Supreme Court holding--a prerogative reserved unto the Court itself--but it would plainly create an unsettling tension with them....

Given the nature of the Guidelines, we think the better view--and one that respects the prior decisions of both the Supreme Court and this court--is that the relevant 'offenses' and 'maximum punishments' are those defined and authorized by Congress in the United States Code. Judicial findings under the Guidelines that set sentences within that authorized range therefore do not offend the Constitution.