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August 2, 2004

Reading SCOTUS tea leaves

Lyle Denniston over at the SCOTUSBlog has this brief commentary on today's cert. grants in Booker and Fanfan. Lyle says "The Court implicitly rejected the argument of criminal defense lawyers to take a slower approach to the constitutional questions, and their separate argument that the questions posed by the government petitions were too narrow in scope."

Though I agree that the decision to take the Acting Solicitor General's suggested cases is a bit of a blow to the defense, I am inclined to view the decision to have argument on October 4, rather than the SG's requested earlier date of September 13, as at least a small (perhaps a very small) endorsement of the defense's "go slow" message (background here). Moreover, it is important not to lose sight of the fact that the SG, in his reply papers (available here), made important concessions about the ability for the High Court to reach certain key issues and questions in the context of considering Booker and Fanfan.

Thus, in the end, I come away from the cert. grants with the view that the Justices realize how important it is for the Court to clarify Blakely's meaning ASAP (and, how could they not, given these assertion by the SG), but also realize that a rush to judgment may only muddy the waters. Thus, the prudent course now is for the Court to accept the cases that the SG is pushing and then take enough time to work through all the issues.

As noted before, the High Court did not speak to the State of Washington's petition for rehearing or the Second Circuit's certified questions. In addition, I do not believe the Court acted in any way on the petitions for cert. being pushed by the defense team. Though I do not know the intricacies of Supreme Court practice or custom, I would assume the Court has the power to take another Blakely case and/or to adjust the questions presented doing so seemed important later.

Among the interesting questions which now follow are (1) who will write amicus briefs, and (2) what will they say? Will the US Sentencing Commission officially weigh in? Will state sentencing commissions? Will Congress? How about state legislatures or state AGs? And though I would expect a number of public policy groups to file amicus breifs, I am going to be very interested to see what positions different groups stake out.

August 2, 2004 at 12:46 PM | Permalink


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It seems most unlikely that the Court will take another Blakely case. The more probably scenario is that the Court will "hold" the petitions filed in Bijou and Pinero and the vacate and remand for reconsideration in light of what Booker and Fanfan hold.

Posted by: Paul Rosenzweig | Aug 2, 2004 3:05:08 PM

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: U.S. v. Shepard, 03-9168

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.

Bill Fick
Foley Hoag LLP

Posted by: Bill Fick | Aug 2, 2004 4:00:31 PM

If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 12:55:13 AM

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