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July 6, 2004

Various hearing reports

Mary Price from FAMM reports that there were "no fireworks" at today's House hearing on Sensenbrenner's drug bill (background here). Apparently, Sensenbrenner was not even there, and DOJ objected to some parts of the bill, though it was "enthusiastic about the new penalties." The ABA submitted a brief letter in opposition to the bill, which can be downloaded here:
Download aba_letter_on_hr4547.doc
Most noteworthy was Mary's report that "after the hearing we learned that staff members from House and Senate, both sides of the aisle, are meeting tomorrow to discuss Blakely and possible fixes."

Meanwhile, I also received reports from two sources that there were fireworks today at an oral argument before a Seventh Circuit panel consisting of Posner, Easterbrook, and Kanne in US v. Booker (03-4225). Apparently, after Blakely came down, the court granted defendant’s motion last week for supplemental briefing, and the whole argument focused on making sense of the post-Blakely world. According to reports, all three judges, and Easterbrook in particular, were taking an "all-or-nothing" approach. None seemed at all open to the idea of invalidated only enhancements and leaving the rest of the guidelines operable.

These reports indicated that this Seventh Circuit panel might try to rule quickly, though I've also heard that the Fifth Circuit heard argument on Blakely issues today and that at least three other circuits are moving quickly on the Blakely front. Feel free to use the comments to predict which circuit gets the first word.

UPDATE: Here's a link which enables accessing a (poor) recording of the Booker oral argument in the Seventh Circuit (and thanks to Bill Theis for the pointer). Type in docket # 03-4225.

July 6, 2004 at 11:20 PM | Permalink


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If you want to hear a recording of the actual argument in the case, just go to the 7th Circuit webpage. The quality of the recording for this case (Booker) is not the best.

Bill Theis

Posted by: Bill Theis | Jul 7, 2004 6:48:58 AM

I don't understand the 'all or nothing' argument -- to me it seems like an extraconstitutional assertion of judicial power. On what authority can a judge reject sentencing reductions? By their very terms, the Apprendi and Blakely rules aren't applicable to that situation, and Cassell's justification that elimination of only enhancements would "distort" the guidelines doesn't seem to be grounded in anything--it's legislating. Is there something that I'm missing?

Posted by: Jay Macke | Jul 7, 2004 9:04:47 AM

The best argument for "all or nothing," I think, is based in concepts of severability and congressional intent -- i.e., Congress would not have wanted, if all upward adjustments/departures are unconstitutional, for the SRA and the guidelines it has authorized to still control federal sentencing. I'm not sure this is a convincing argument, but I do think it is a plausible one.

Posted by: Doug B. | Jul 7, 2004 9:39:28 AM

But if it's all or nothing, do the Judges have a right or ability to give a bogus but equally severe alternate sentence at the same time as sentencing under the guidelines? I thought they were required to sentence under the guidelines. Anybody?

Posted by: Tom T. | Jul 7, 2004 9:56:12 AM

I've just started thinking about it, so I may change my mind soon, but I agree with the post that is puzzled by all this all or nothing talk. There are all kinds of situations where you don't do what either the Sentencing Guidelines or, for example, the federal rules of evidence, require because to do so would be unconstitutional. Like the guidelines call for a preponderance of the evidence standard (albeit just in a policy statement in 6A1.3 cmnt), but many courts apply the clear and convincing standard in places where the constitutional requires it. See e.g. United States v. Jordan, 256 F.3d 922, 927-928 (9th Cir. 2001). Also, a rule of evidence allowing co-conspirator statements is not applied if doing so violates the confrontation clause. Why can't we have a system where you apply the guideline unless it violates Blakely? I.e., where a fact that increases the sentence was never found by the grand or petit jury and not stipulated by the defendant. That seems to fit in with the doctrine of constitutional doubt.

Posted by: Ramzi (defense attorney) | Jul 7, 2004 5:45:06 PM

On what authority can a judge reject sentencing reductions?

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 2:24:53 AM

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