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July 26, 2004

Unconventional wisdom?

There is big news out of Boston, even before the Democratic Convention officially gets started (and I am not talking about the BoSox taking 2 of 3 from the Yanks). Today, US District Judge Nancy Gertner of the District of Massachusetts — who rivals Judge Weinstein in her penchant for scholarly (and copious) sentencing opinions — has weighed in on what Blakely means for federal sentencing. In the attached opinion in US v. Mueffleman, she states:

I conclude (1) that it is entirely appropriate for a lower trial court to consider Blakely issues and add her voice to the dialogue about the decision’s implications; (2) that Blakely unquestionably applies to the Federal Sentencing Guidelines; and (3) that the Guidelines are rendered unconstitutional in their entirety by that application.

While Blakely has gone a long way to make the sentencing system more fair, and to reinvigorate the role of juries in the process, it is inconceivable that the system now required by the decision is at all consistent with anything contemplated by the drafters of the Sentencing Reform Act or of the Guidelines. To literally engraft a system of jury trials involving fact-finding enhancements onto the Sentencing Guideline is to create a completely different regime than that comprehensive sentencing system envisioned by the legislation’s drafters or the drafters of the Guidelines. If such a system is required to give full effect to the Constitution’s jury trial guarantee then the entire sentencing system has to be recast. The constitutional sentencing pieces cannot be cobbled together by judges on a case by case basis.

More commentary on this case (available below) and other developments soon. In the meantime, I and other Shrek fans should try to avoid humming this variation of the children's ditty: "Do you know the Mueffleman, the Mueffleman, the Mueffleman....?"
Download gertner_blakely_decision.pdf

July 26, 2004 at 12:31 PM | Permalink


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I am a clinical teacher at the Wisconsin Law School. I have five law students working full time in our clinic this summer representing inmates at the one federal prison in Wisconsin. We spend much of our life in the federal postconviction world on behalf of our clients.

As you might expect, my students have been living and breathing Blakely ever since the opinion came down. Right now, they all are working very hard researching, analyzing and drafting possible arguments that Blakely should be applied retroactively through the various federal postconviction motions that exist.

One of the more intriguing possibilities is in viewing Blakely as stating a new substantive rule, thereby avoiding retroactivity issues. The argument would seek to show that, under Blakely, the line between elements of a crime and sentencing enhancements has been erased. Both involve the use of the government's power to regulate conduct through punishment, and such power only can be exercised after a jury has found, beyond a reasonable doubt, that the defendant has engaged in the prohibited conduct. The jury now must find guilt beyond a reasonable doubt not only that the defendant robbed the bank, but also that he stole more than $10,000. There can be no such thing as legal guilt without a finding beyond reasonable doubt, both in terms of the primary conduct and the conduct comprising all the elements of the punishment. It's a Winship-Blakely marriage, of sorts.

This kind of argument certainly has been suggested in legal commentary and case law. We're thinking it could be raised in both a first §2255 motion, and through the old-warhorse §2241. We welcome any and all reactions and comments; we can take it. No one should worry that we're promising clients they'll be out by Christmas. And, yes, we do know the meaning of "floodgate".

Posted by: Judy Olingy | Jul 26, 2004 4:06:28 PM

On July 23, Judge Rovner in the Seventh Circuit reasoned, without ruling, that Blakely should apply retroactively because it announced a new definition of "statutory maximum" so it was not dictated or compelled by precedent. Simpson v. US, No. 04-2700I. I am the law clerk for Judge Allen Sharp in the Northern District of Indiana primarily responsible for writing sentencing memoranda, so we are following the issue closely. Judge Sharp has no criminal sentencings scheduled until August 20, so has not had to apply Blakely and Booker yet. I use your blog to keep him posted on the latest developments.

Posted by: Susan Johnson | Jul 27, 2004 1:11:53 PM

The argument would seek to show that, under Blakely, the line between elements of a crime and sentencing enhancements has been erased.

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:38:48 AM

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