Confusion? Chaos? Anarchy? We need a new noun!

We have already seen Blakely turned into an adjective in talk of "Blakely-izing" indictments or trials, but it may be time for Blakely to enter the lexicon as a noun to describe mass confusion and uncertainty in the law — perhaps in the way Fred Merkle's boner added to our vocabulary nearly a century ago. (Fans and non-fans can read all about Merkle and his place in baseball history here and here and here).

The latest evidence of the chaos arising in the wake of Blakely come from two sources: (1) an amazing decision by Judge Joseph Bataillon from the District Court of Nebraska in US v. Swan, 2004 U.S. Dist. LEXIS 14883 (D. Neb. Aug. 2, 2004), and (2) a peculiar paragraph from the Fourth Circuit in US v. Smith, 2004 WL 1729821 (4th Cir. Aug. 3, 2004).

1. Judge Bataillon's opinion in Swan could launch a thousand law review articles, so for now I can only give the highlights. Let me just quote (with citations omitted) from the decision itself:

[I]n reliance on Blakely, the Eighth Circuit Court of Appeals has now found the sentencing guidelines wholly unconstitutional. United States v. Mooney.... Under principles of stare decisis, decisions of the Eighth Circuit Court of Appeals have precedential value and must be followed by the district courts within the Eighth Circuit. Nevertheless, the court finds it is not bound to follow Mooney at this time, since the appeals court decision is not yet final.

Stare decisis is similar to the doctrines of res judicata and collateral estoppel, which require a final judgment, although stare decisis does not draw its force from the policy that protects final judgments. Instead, stare decisis stems from the principles of stability and equal treatment underlying the orderly development of legal doctrine. In circumstances such as these, the court finds that principles of stare decisis require restraint in the use, as precedent, of a decision that is not yet final.

[U]ntil the mandate in Mooney issues, this court is not obliged to follow the dictates of the Mooney decision. Until such time as the Mooney decision becomes a final judgment accorded precedential effect, this court is compelled to apply its own understanding of the Supreme Court’s holding in Blakely. This court remains convinced that the proper reading of Blakely would allow a court to follow the guidelines as long as factors increasing the "maximum," as defined in Blakely, are charged in the indictment and either admitted or submitted to a jury (or the court if a jury is waived) under the standard of proof beyond a reasonable doubt. See United States v. Terrell, No. 2004 WL 1661018 (D. Neb. July 22, 2004).

The court believes the Eighth Circuit’s adoption of U.S. District Judge Cassell’s rationale as set forth in Croxford, 2004 WL 1521560 at *12-13, is untenable and may not withstand scrutiny on review.

There is a lot more important reasoning in the Swan opinion, but this discussion of stare decisis and the statement that "this court is compelled to apply its own understanding" of Blakely leaves me (pleasantly) gobsmacked.

2. Though less startling and clearly less thoughtful, perhaps no less important is this footnote from a per curiam Fourth Circuit decision in Smith. Issued the day after the Fourth Circuit's en banc order in Hammoud telling its district courts to follow the federal guidelines (while also recommending the imposition of backup sentences (background here)), here's what the Fourth Circuit's Smith decision says in a concluding footnote:

In a motion to remand filed July 16, 2004, Smith, through counsel, requests that her case be remanded so that the district court can have the opportunity to rehear the sentencing issue in her case in light of Blakely. Because we vacate Smith's sentence here and remand for resentencing, we leave to the district court in the first instance the application of Blakely, if any, in the determination of Smith's sentence. Accordingly, the motion to remand, opposed by the government in its response filed July 23, 2004, is denied as moot.

Smith, 2004 WL 1729821 at n.3 (emphasis added). Huh??