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August 24, 2004

Interesting sentencing case, though Blakely shaky

As briefly mentioned before, US v. Paulus, 2004 U.S. Dist. LEXIS 16427 (E.D. Wis., Aug. 6, 2004), merits its own post in part because it is the first decision I have seen in which a court confronts Blakely in the context of deciding to depart upward from the guidelines. The opinion is also worthy of a read simply because of its compelling facts (the defendant was a county district attorney who accepted 22 bribes over a two-year period), and because of the thoughtful and at times dramatic account by US District Judge William Griesbach of his reasons for departing upward. (A brief quote: "This offense and the conduct relating to it strike at the heart of the system of justice we having in this country and of which we are rightly proud.")

In Paulus, Judge Griesbach skates around apparent Blakely problems by first asserting that the defendant, though his plea agreement, "has admitted the essential facts upon which the court suggested that a departure may be warranted." This is accurate to a degree since the upward departure here is based in part on the number of bribes and amount of money received by the defendant. And these facts appear in Paulus' plea agreement.

However, the Paulus decision is quirky and perhaps Blakely shaky because the departure also seems to depend on a finding that the defendant's crime may have caused "a loss of public confidence in government." While conceding that Paulus did not admit to "the impact his offense may have had on the public," Judge Griesbach then asserts that "this is not the kind of sentencing factor to which Blakely is addressed." Unfortunately, Judge Griesbach gives no further explanation of this cryptic and important conclusion.

In addition, apparently to provide a back-up rationale for his decision, Judge Griesbach then asserts that if there was a Blakely problem, he would follow Judge Cassell's opinion in Croxford and just treat the guidelines "as guidance" (which, the judge indicates, he has already done "in other cases where the [Blakely] issue has been raised"). But then, after suggesting he might just treat the guidelines as advisory, Judge Griesbach works through a traditional guideline departure analysis with great analytic rigor and operates as if he believes he is legally bound by the guidelines in this case.

August 24, 2004 at 02:47 AM | Permalink


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