More fireworks in the Eighth Circuit

Another noteworthy decision was handed down by the Eighth Circuit today in US v. Pirani, No 03-2871 (8th Cir. Aug. 5, 2004). This panel decision authored by Judge Bye advances the Blakely analysis in various ways: (1) it conducts a plain error analysis to a new Blakely claim and concludes that pre-Blakely judicial fact-finding is plain error and (2) speaks at least indirectly to the recent wandering (rebellion?) of Judge Bataillon US v. Swan (background here).

Here's some of what (two judges of) the Eighth Circuit had to say:

Though the mandate in Mooney has yet to issue, we believe the decision represents binding precedent on a matter sure to receive the attention of the Supreme Court or this court en banc, or both, in the near future. Without expressing an opinion regarding the constitutionality of the Guidelines system in its entirely, we hold Blakely extends to the Sentencing Guidelines at least to the extent they require the courts to impose punishment based on judicially found facts. Because the Blakely Court did not address the impact of its decision on the Sentencing Guidelines, we recognize all judicial opinions addressing the impact of Blakely upon the Guidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law....

Because [the defendant Pirani] did not object to the sentence under Apprendi in the district court, we review the sentencing decision for plain error. Even under this heightened standard, we agree with Mr. Pirani his sentence violates principles underlying the rule of Apprendi when considered in view of Blakely.... In effect, Louis F. Pirani was charged with and convicted of one crime but sentenced for another.... Furthermore, we conclude such a deprivation of Mr. Pirani's constitutional right amounted to plain error. We are mindful an error cannot be plain unless it is "obvious" or "clear under current law." Because the circuits are currently split on whether Blakely applies to the Sentencing Guidelines, it may be said the error in this case falls short of the plain error standard. Even if precedent in our own circuit precluded plain error where there is a circuit split, we would find the argument unpersuasive because it ignores the realities of current affairs....

In an equally fun read, Judge Smith writes as follow in an opinion concurring in part and dissenting in part:

At the outset, I am satisfied that the district court–in the pre-Blakely landscape–correctly sentenced Mr. Pirani.... But what of Blakely? Could the district court be correct in its application of the Guidelines, but plainly err by complying with the strictures of the federal-sentencing scheme? The effects of the Blakely decision on the ultimate constitutionality of the United States Sentencing Guidelines is anything but clear. How, indeed, can an error be plain, when as the majority eloquently notes, " . . . we recognize all judicial opinions addressing the impact of Blakely on the [G]uidelines depend on a modicum of conjecture as to what the Supreme Court will do if and when it finally addresses the issue, and all are thus part of an unsettled and yet-forming body of law"?....

As such, by its own admission, the majority is shooting at a moving target. Although we are unsure of the Court's ultimate position on the constitutionality of the federal sentencing legislation, the same cannot be said for the Court's position on plain-error review. The Court has held definitively, "[a]t a minimum, court of appeals cannot correct an error pursuant to Rule 52(b) unless the error is clear under current law." Given the unclear state of the law, as it relates to the Guidelines, I cannot agree that plain error has been shown.