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July 22, 2004

Wednesday's work by the Judicial Branch

After a seemingly calm Blakely morning, the afternoon started its shift into warp speed with news that the Ninth Circuit had a major Blakley ruling in US v. Ameline (basic details here). The Ameline ruling is major first and foremost because it represents the third appeals court -- after the Seventh in Booker and the Sixth in Montgomery (though that panel decision has since been vacated) -- to declare aspects of the federal sentencing guidelines unconstitutional due to Blakely.

Though third in time, Ameline is by far the biggest circuit ruling to date because it addresses (though sometimes obliquely) so many more issues than any of the other circuit rulings. This post over at All Deliberate Speed provides highlights of ground covered in Ameline, and this article from law.com is also very informative.

Most critically, the decision speaks directly and thoughtfully to the severability issue -- rather than punting as was done in Booker. The Ameline court draws on canons of construction and congressional intent to conclude the guidelines are severable. See, e.g., slip op. at p. 33 ("the government has failed to overcome the presumption in favor of severability"). I am not sure the court really loved this conclusion, but it was clearly chary about declaring the whole guideline structure unconstitutional. See, e.g., slip op. at p. 30 ("We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.").

Interestingly, though my own impression is that district courts to date have been fairly evenly split on the severability question, the Ninth Circuit implies in footnote 2 that it is adopting the majority rule. Indeed, on Wednesday, I received three new district court opinions declaring the guidelines unconstitutional, two of which found the guidelines not severable, Compare US v. Marrerro, 04 Cr. 0086 (S.D.N.Y. July 21, 2004) (Rakoff, J.) (not severable) and US v. Sweitzer, Cr-03-087-01 (M.D. Pa. July 19, 2004) (Rambo, J.) (same), with US v. Lynch, 03-CR-137-K (N.D. Ok. July 2004) (Kern, J.) (severable).

There is a lot more which can and should be said about Ameline, but I've got two other branches to get to tonight. Nevertheless, I see two additional big elements in the decision: (1) the court expressly sanctions the use of a sentencing jury to find aggaravating sentencing facts (see slip op. at 34; see also background here), and (2) the court implicitly holds that a defendant can waive his right to a jury, but cannot "waive down" the burden of proof from beyond a reasonable doubt to preponderance (see slip op. at 34 n.19).

July 22, 2004 at 02:32 AM | Permalink


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Has anyone commented on the effect on criminal history enhancements under 4A1.1(d) and (e)? This was not an issue in Ameline (see slip op. 17, n.10). Can the length of a defendant's prior conviction or the fact that defendant committed the offense while under a criminal justice sentence properly fall under Apprendi's prior conviction exception and thus survive Blakely?

(Thanks for a great resource, by the way)

CC (judicial clerk)

Posted by: cc | Jul 22, 2004 1:37:59 PM

I think these are important and uncertain issues. The A-T exception only speaks of "prior convictions" and thus it is arguable that any other fact in the mix in the assessment of prior convictions creates Blakely issues. However, you might also content that such matters involve "legal" judgments rather than factual findings. More to litigate!

Posted by: Doug B. | Jul 22, 2004 1:53:12 PM

One thing the opinion doesn't address in its allowance for a sentencing jury is whether the jury may only consider things alleged in the indictment. In other words, if the indictment doesn't contain the sentencing factors (as to the amount of drugs, etc.), will the government have to supersede the indictment? If not, what do we do with Scalia's language re things needing to be charged in the indictment and found by the jury? If the factors are required to be alleged in the indictment, and if the statute of limitations has run, will such an amendment be allowed?

(Corporate Lawyer w/a pro bono case)

Posted by: J M | Jul 22, 2004 3:27:16 PM

In other words, if the indictment doesn't contain the sentencing factors (as to the amount of drugs, etc.)

Posted by: Robe de Soirée 2013 | Dec 13, 2012 1:12:15 AM

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