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August 18, 2004

Another SCOTUS option for handling Blakely

We are now more than two weeks since the Fourth Circuit's peculiar order in Hammoud (background here and commentary here), and the promised opinions still have not appeared. Meanwhile, others involved in the Hammoud case have been able to write much faster: the lawyers representing defendant Hammoud were able to file a thoughtful petition for cert. in the Supreme Court within four days of the Fourth Circuit's order.

Yesterday I received a copy of Hammoud's cert. petition, and it perhaps partially explains the Fourth Circuit's struggles. As the petition notes, in Hammoud the district court relied on facts not charged in an indictment and not proven to a jury beyond a reasonable doubt to increase the defendant's sentence from a guideline range of 46 to 57 months to an imposed sentence of 1860 months (from a sentence of less than 5 years to a sentence of 155 years)! Though this amazing fact alone does not change the basic legal question of Blakely's applicability to the federal guidelines, these sorts of facts certainly highlight broader principles that seem to be animating the Blakely decision.

The entire cert. petition is a worthwhile read (and is available to download below). Among other interesting points, the petition argues that the Hammoud case "is an appropriate, indeed necessary, companion to Booker and Fanfan because of the breadth and uniqueness of the issues this case presents." Reiterating these themes, the conclusion asserts:

This case is an ideal companion to Booker and Fanfan. It presents a wide range of Blakely issues in a non-drug context and has the additional advantage of presenting a disproportionality issue under the Fifth Amendment.

Though I would not give good odds on the prospect that this petition will be granted, the filing still valuably spotlights for the Supreme Court the different federal settings in which Blakely arises.
Download cert_petition_in_hammoud_v_united_states.pdf

August 18, 2004 at 12:30 PM | Permalink


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