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August 27, 2004

More guidance from the 9th Circuit

We know that, pending decisions in Booker and Fanfan, at least four circuit courts are trying to proceed with business as usual in applying the federal sentencing guidelines. But, of course, in the Seventh and Ninth Circuits binding precedents require coping with a new (and uncertain) post-Blakely sentencing reality. Today in US v. Castro, No. 03-50444 (9th Cir. Aug. 27, 2004), the Ninth Circuit issued a per curiam opinion which helps sort out more of the post-Blakely litigation uncertainty. Here's the heart of what the court says:

In US v. Ameline, 376 F.3d 967 (9th Cir. 2004), we held that Blakely v. Washington, 124 S. Ct. 2531 (2004), applied to the US Sentencing Guidelines and, thus, the imposition of an enhanced sentence on the basis of judge-found facts violates the Sixth Amendment....

As we recognized in Ameline, “the Blakely court worked a sea change in the body of sentencing law.” 376 F.3d at 973. Whatever the outcome of the Supreme Court proceedings in Booker and Fanfan, those decisions will likely have a profound impact upon our disposition of sentencing issues in direct criminal appeals and will certainly affect the continued vitality of Ameline. Accordingly, in a case in which the defendant appeals both his conviction and his sentence, if we decide to affirm the conviction and if the sentence imposed implicates Blakely or Ameline, we would ordinarily withhold our decision until the Court decides Booker and Fanfan.... Similarly, if we have already issued our decision in such a case, but have not yet issued the mandate, we would ordinarily stay further proceedings....

Here, however, circumstances prompt us to act on the sentencing issues at this point, instead of staying proceedings pending the Court's decisions in Booker and Fanfan. Had Castro’s sentence been based only on the facts that were found by the jury and not on those found by the district judge, he would already have completed serving his sentence. Where the portion of the sentence that is clearly unaffected by Blakely and Ameline has expired or will expire shortly, we deem it appropriate to remand the case to the district court for whatever action it determines to be proper under the circumstances. Among the options available to the district court, within the exercise of its discretion, would be to reconsider its sentence or to stay further proceedings pending the outcome of Booker and Fanfan, with or without granting bail to the defendant. FN3

FN 3: In Ameline, we held that we are not precluded from addressing Blakely issues even when a defendant raises them for the first time after the case is submitted. 376 F.3d at 972-74. Although we have the authority to identify and consider such sentencing issues sua sponte, it would be appropriate for parties with pending cases to inform this court by letter at any time, jointly or severally, when a potential Blakely or Ameline issue exists, or when particular circumstances warrant action on our part prior to the Supreme Court’s decisions. We note with approval that Castro filed a letter advising this court that his re-sentencing was affected by Blakely. Absent particular circumstances warranting earlier action, a motion to file a supplemental brief or a supplemental petition raising Blakely or Ameline issues will ordinarily be denied without prejudice to renew following the Supreme Court’s decisions. A petition for panel rehearing or for rehearing en banc raising Blakely or Ameline issues will also likely be held in abeyance in most cases. If further proceedings have been stayed, no such petition need be filed until the stay expires or is terminated. If no stay has been issued, either party may request that one be entered.

August 27, 2004 at 04:32 PM | Permalink


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