Noteworthy Circuit Snippets

Though we have not had a major ruling from the federal circuit courts in some time, we continue to get regular snippets from those circuit courts which have already weighed in on Blakely. And though these snippets often appear in so-called unpublished opinions, they are still frequently consequential and interesting.

For example, in cases like US v. Bowden, 2004 U.S. App. LEXIS 17937 (6th Cir. Aug. 24, 2004), and US v. Musleh, 2004 U.S. App. LEXIS 17742 (4th Cir. Aug. 20, 2004); US v. Shipman, 2004 U.S. App. LEXIS 17743 (4th Cir. Aug. 20, 2004), we see the Sixth and Fourth Circuits quickly disposing of Blakely claims in footnotes based on their Koch and Hammoud rulings. Obviously, the fact that these circuits still have not yet explained their en banc Koch and Hammoud orders in written opinions has not slowed their efforts in other sentencing cases.

In recent unpublished decisions from the Ninth Circuit, we see the court continuing its efforts (first noted here) to keep its Ameline decision from disrupting too many sentences. For example, US v. Chetty, 2004 U.S. App. LEXIS 17935 (9th Cir. Aug. 23, 2004), involved an interesting application of plain error. The Chetty court, citing Ameline, explained "it is plain error under the Sixth Amendment to increase punishment beyond the maximum standard range based on facts not admitted by the defendant or found by a jury beyond a reasonable doubt, unless the right to jury trial is waived." Yet Chetty's sentence is not reversed because, though "Chetty's eight-level enhancement for loss found by the district judge by a preponderance of the evidence was plain error," to warrant reversal "the error must have been prejudicial and have affected the fairness of the proceedings." Because Chetty was only disputing part of the loss attributed to him, the sentences he received was still "within the range of the offense level Chetty sought." Thus, through "the district judge's enhancement based on his finding of loss amount was plain error, it was not prejudicial and does not warrant remand for resentencing."

And, in a brief decision in US v. Green, 2004 U.S. App. LEXIS 17911 (9th Cir. Aug. 20, 2004), we get a different variation on important waiver questions. In Green, the Ninth Circuit relies on an appeal waiver to avoid dealing with Blakely: "Defendant waived the right to appeal her sentence, and we therefore dismiss her appeal. Because defendant's waiver also precludes us from considering her argument based on Blakely, we deny her motion for supplemental briefing."

From the Eighth Circuit we get US v. Mohr, 2004 U.S. App. LEXIS 17861 (8th Cir. Aug. 23, 2004), where the defendant was sentenced as a career offender and contested the characterization of one of his predicate prior felonies, commercial burglary, as a crime of violence. In another stretch of the "prior conviction" exception, Judge Murphy in a footnote comes to the debatable conclusion that "Mohr's case is unaffected by Blakely because ... the only enhancement to Mohr's sentence was because of his prior convictions." Interestingly, Judges Heaney and Bright each have separate concurrences in Mohr to discuss the characterization of the defendant's prior conviction, but neither mentions the possible Blakely issue.