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July 13, 2004

What the....? (aka The 9th Circuit mumbles)

Late yesterday I noticed this Ninth Circuit "Order of Remand" in US v. Epis, which cites Blakely. Here's the full text of the order:

This cause came on for hearing before the court on June 16, 2004. The Supreme Court of the United States has now granted certiorari in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted (U.S. June 28, 2004) (No. 03-1454), which is a related case dealing with the growing and use of marijuana for medicinal purposes. This court now remands this case to the district court for reconsideration of the judgment following the decision by the Supreme Court in Raich. If, after considering any application of Raich to this case, the district court determines that Epis’s conviction should remain in tact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___ (2004) 2004 WL 1402697 (June 24, 2004). The panel of this court retains jurisdiction pending reconsideration by the district court.

I did not post this decision because I came to the conclusion that this was just one of a number of cases I've seen (especially from state courts) remanding for reconsideration in light of Blakely. See, e.g., State v. Beaulieu, 2004 Minn. App. LEXIS 774 (July 6, 2004). However, a reader from the Ninth Circuit wrote in to say this opinion shows that "The Ninth Circuit appears to have weighed in, albeit somewhat cryptically, on Blakely on the same side as the Seventh Circuit." When I wrote back to say that I was reading this text narrowly as not weighing in on the merits, the reader responded:

"You are not alone in that [reading], since it [remanded] without any reasoning or explanation. But given the stare decicis rule in this circuit, it is hard to assume that since it is a published decision and it clearly directs the district court to apply Blakely in sentencing it does not have the same effect on all sentencing decisions in the circuit until overruled by either the court en banc or the Supreme Court. On the other hand, who can make much sense out of the whole Blakely morass?"

Can the smart folks out there with your Federal Courts books open help us figure this one out??

UPDATE: In the comments, the view seems to be that this is not a ruling on the merits or of any defined consequence. It also appears that a more definitive discussion of Blakely should be coming from the Ninth Circuit soon.

July 13, 2004 at 08:00 PM | Permalink


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Last week, a 9th Circuit panel heard oral argument on the Blakely issue, where its impact was discussed (and apperently briefed) at length. My impression is that Judges Klienfeld and Hall are prepared to follow Judge Easterbrook's analysis. I would not be surprised to see an opinion from that panel, which also includes Judge Wardlaw (a probable dissenter), very soon. I do not believe that the 1 paragraph opinion in the recent published opinion will have any impact; it certainly does not preclude another panel from addressing the Blakely issue on the merits. Also, in oral argument yesterday, Judge Kozinski, in another case, suggested that he might find that an appellant who had not argued the Blakely theory in substance at the trial court level (a year before Blakely came down) has waived the right to do so now!


Posted by: Tom Freeman | Jul 13, 2004 10:52:30 PM

A directive to resentence, if and when resentencing is called for, in a manner "consistent with" Blakely, is not an order to "apply Blakely" in resentencing, as your correspondent put it. If the judge determines that Blakely doesn't apply, then a sentence that doesn't apply Blakely is "consistent with" Blakely. Much as I would like to conclude otherwise, I can't see that order as having any meaning at all, beyond the implied directive any remand to proceed in conformity with all applicable precedent.

Posted by: Peter G | Jul 13, 2004 11:04:28 PM

The two attorneys who are downplaying the impact of Epis in the Ninth Circuit are perhaps taking a head-in-the-sand posture. The very verbiage used in Epis is very instructive. The remand is to re-sentence “consistent with” Blakely. To be consistent with it must be “free from variation or contradiction” (Merriam-Webster on-line dictionary). The Ninth Circuit uses a significant degree of care in the language it uses in remanding cases. When it uses the language “consistent with” it means just that: follow what is said. The court below disregards that mandate at its peril; it is not, as intimated by the two attorneys, an invitation to revisit the issue and determine whether it is applicable or not. When the Ninth Circuit remands for reconsideration “in light of” it is signaling to the court below to consider the case, whether it applies and, if applies, the extent which it applies. Since Epis is a published decision, if it says as it appears to say, that a federal defendant must be sentenced “consistent with” Blakely, then all future circuit panels and district courts in the circuit must follow it until such time as it is overruled by the the court en banc or overruled or inconsistent with a later decision of the U.S. Supreme Court. [Miller v. Gammie, 335 F.3d 889, 899-900 (9th Cir. 2003) (en banc)]

Posted by: Thomas J. Yerbich | Jul 14, 2004 3:46:52 PM

A full-scale Blakely decision will be issued in the 9th Circuit. Yesterday, during oral argument in US v. Sanchez-Garcia, Judge Berzon advised counsel not to waste time arguing whether Blakely applies to the Federal Sentencing Guidelines because that is a decision that wil be made by a different panel, with priority on the issue. There was no hint that the issue haed in any way been decided on the merits; and the implication is that a penal will be ruling on the issue directly. I suspect that panel will be the Klienfeld-Hall-Wardlaw panel, which was the only panel to hear extensive Blakely argument last week. But perhaps another panel is ahead of it.

Posted by: Tom Freeman | Jul 14, 2004 5:52:43 PM

The remand is to re-sentence “consistent with” Blakely. To be consistent with it must be “free from variation or contradiction” (Merriam-Webster on-line dictionary).

Posted by: Robe de Cocktail Pas Cher | Dec 12, 2012 3:07:54 AM

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