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July 21, 2004

The 9th Circuit speaks!!

This just in. The Ninth Circuit, in US v. Ameline, through an opinion by Judge Richard A. Paez (with Judge Wardlaw in agreement and Judge Gould dissenting), decided to "examine sua sponte whether the Blakely rule applies to sentences imposed under the Sentencing Guidelines." And it holds:

We hold that Blakely’s definition of statutory maximum applies to the determination of the base offense presumptive ranges under § 2D1.1(c) of the Sentencing Guidelines, as well as the determination of the applicability of an upward enhancement under § 2D1.1(b)(1). As a result, we hold that Ameline’s sentence, based on the district court’s finding by a preponderance of the evidence of 1,603.60 grams of methamphetamine—despite Ameline’s admission of only a detectable amount of methamphetamine—violates Ameline’s Sixth Amendment right to a jury trial. Because we may sua sponte review an issue based on a change in the law by the Supreme Court, we hold that we may properly review Ameline’s Blakely claim and conclude, regardless of whether we apply the harmless or plain error standard, that the district court violated Ameline’s right to have the facts underlying his sentence found beyond a reasonable doubt. Finally, we hold that the Blakely rule’s effect on the determination of a base offense level under § 2D1.1(c) and an upward enhancement under § 2D1.1(b)(1) do not render the Sentencing Guidelines facially invalid. Accordingly, we vacate Ameline’s sentence and remand for resentencing.

More commentary when I get to actually read the full opinion (all 45 pages of it!)

UPDATE: I'm still working through the opinion, but have been alerted to the neat fact that this blog is cited in a few of the footnotes. Cool.

July 21, 2004 at 02:45 PM | Permalink


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Sentencing permits subjectivity; hence, judges and most everyone else never seemed to agree on sentencing. And that is why the federal guidelines were put into place. Since the guidelines were put into question, no one has agreed whether Blakely applies. Do you see a pattern?
- prosecutor

Posted by: jeff | Jul 21, 2004 4:34:24 PM

The following is is from http://www.californiarepublic.org/archives/Columns/Field/20030920FieldPaez.html -- regarding the (long)battle over the confirmation of Judge Paez, who authored this opinion:


Roll Call, in a March 12, 1998, editorial ("Slap on the Wrist"), pointed out Paez's ruling in a case that indicated a possible softness on crime that ought to raise questions about his nomination to an appellate court:

The Senate Judiciary Committee faces an interesting dilemma in considering whether to approve the nomination of federal district court Judge Richard Paez to the 9th Circuit Court of Appeals in California. Republicans have held up the nomination on the grounds that Paez is "too liberal." But what will they do now that Paez has handed down a shockingly light sentence in the case of Republican Rep. Jay Kim (Calif)?

In spite of an abundance of evidence that Kim tried to collect millions of dollars in illegal campaign contributions from foreigners and corporations, Paez sentenced Kim to two months of home detention, one year of probation, and a $5,000 fine after he pleaded guilty to misdemeanors in connection with accepting $250,000 in unlawful contributions. Prosecutors had asked that Kim be given six months' jail time because the violations involve the largest acknowledged receipt of illegal campaign contributions in Congressional history. [. . .]
All the evidence - and the fact that Kim received a lighter sentence than his former campaign treasurer - makes Judge Paez's sentences a mere slap on the wrist and makes us think that the Senate Judiciary Committee ought to question whether Paez isn't too soft on criminals to be an appellate judge.


Posted by: defense counsel | Jul 21, 2004 4:45:41 PM

Don't forget to check out footnote 13 at page 22.

Posted by: Gail | Jul 21, 2004 4:46:39 PM

I thought I saw somewhere in one of the many post-Blakely opinions (or was it Blakely dissents?) that reconvening sentencing juries to determine whether the enhancements apply is not legally kosher outside the capital context--does anyone recall if this is true? Maybe it violates the language of one of the criminal rules, or did Paez/Wardlaw get this aspect of the remedy right in (Sweet) Ameline? (with apologies to Elliot Smith there)

Dan (crim. defense lawyer)

Posted by: Dan Markel | Jul 21, 2004 5:15:59 PM

I found the language in Judge Young's Green opinion, which pre-dated Blakely but anticipated its holding: he wrote that

"It is by no means clear that the convening of sentencing juries at
this point would comply with the Fifth Amendment’s guarantee of a
speedy trial in criminal cases. Had the Court recognized the
constitutional issues in these cases sooner, the Department might
have been able to prove sufficient facts to achieve higher
sentences, and the Court regrets that the Department has lost its
chance to do so. The Court must err on the side of protecting
the defendants’ liberty, however, particularly when the
constitutional protections at issue directly implicate the
reliability of determinations that affect that liberty."

So, does anyone think this would be an issue on remand in Ameline, notwithstanding the 9th Cir's apparent blessing?

Posted by: Dan (again) | Jul 21, 2004 5:29:43 PM

In this case, defensecounsel, Paez is no more soft on crime than Scalia.

Posted by: David in NY | Jul 21, 2004 5:40:57 PM

In the Justice Dept's "model brief," sent out just 2 weeks ago, they agreed that convening a sentencing jury without any supporting statute or rule, and in violation of the plain language of Fed.R.Crim.P. 32(i) (disputed sentencing facts to be determined by judge) and the unanimous holding of Edwards v US (describing correct procedure as mandated by current law), would be directly contrary to the Supreme Court's 1968 decision in United States v Jackson. (In this, they are absolutely correct.) I find it curious that in the Booker cert petition, the SG now mentions the convening of sentencing juries as an option, and fails to cite Jackson.

Posted by: Peter G | Jul 21, 2004 8:56:45 PM

I find it curious that in the Booker cert petition, the SG now mentions the convening of sentencing juries as an option, and fails to cite Jackson.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:18:26 AM

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