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August 11, 2004

Spanning the Circuits

With big circuit news on the horizon — e.g., we still await written opinions from the Fourth Circuit in Hammoud and I believe the Sixth Circuit has an en banc Blakely case scheduled for hearings today — smaller news emerges daily as the circuits cope with a range of post-Blakely litigation realities.

For example, yesterday the First Circuit issued an extremely long opinion in US v. Cianci, 2004 U.S. App. LEXIS 16421 (1st Cir. Aug. 10, 2004), affirming the convictions of the former mayor of Providence and some associates on public corruption charges. At the end of the opinion, the First Circuit panel explains in this way how sentencing issues will be handled:

In light of the Supreme Court's recent decision in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court's forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.

In something of a contrast, yesterday the Eleventh Circuit in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004), continued its (questionable) efforts to keep certain defendants from being able to raise Blakely claims. As Howard Bashman first reported here, in Curtis the Eleventh Circuit rejects a defendant's request to file post-oral argument, pre-decision supplemental brief raising Blakely issues. As Howard astutely notes: the Curtis "order demonstrates [that] the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach."

The Curtis decision is noteworthy (and troubling) not only for expanding the Eleventh Circuit's restrictions on who can now raise Blakely claims (details here), but also because tucked into footnote 2 are important (and contestable) conclusions about plain error analysis in light of Blakely. Specifically, the Eleventh Circuit says, "as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error," and in support of this conclusion the court asserts that "we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings." Though I do not know if the case's facts support or refute this conclusion, but I cannot help but wonder how can the Eleventh Circuit be confident there is no miscarriage of justice without even allowing Curtis to brief this issue.

Relatedly, a defense attorney reports from the Ninth Circuit that the court is issuing orders in some previously decided cases (which are not yet officially "final") which essentially postpones final determination of sentencing issues "pending resolution of the effect of Blakely v. Washington on the United States Sentencing Guidelines." But, as this attorney insightfully notes, "I thought that the Ninth Circuit has already decided that issue in Ameline. I guess everything is on hold in the Ninth Circuit until the Supreme Court issues its decision."

Finally, the Tenth Circuit yesterday issued an opinion in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004), with a questionable Blakely ruling concerning a restitution order, but this issue merits its own distinct post.

August 11, 2004 at 05:27 AM | Permalink


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The separate order issued by the First Circuit in US v. Cianci, is not as encouraging as what the opinion itself states in that it already is requesting the defendant-appellants to address the issue of waiver, and reads as follows:

Defendant-appellants jointly seek permission to make supplemental filings addressing the Supreme Court's recent decision in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004). They may make such filings with the court in the form of supplemental briefs not to exceed twenty pages, no later than thirty days from the date of this order, with service to opposing counsel. These briefs shall also address the issue of whether defendant-appellants have waived any Blakely issue by not raising it in their original appeals.

The United States shall file a response brief with the court not to exceed twenty pages, no later than fifteen days from the date the last defendant-appellants' supplemental briefs are filed, with service to opposing counsel.

The Order can be obtained at http://pacer.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=02-2158BRIEFING.01A

Posted by: Tom Lincoln | Aug 11, 2004 11:00:25 AM

For those reading tea leaves in the Second Circuit, here's a thimble full. I don't think it adds much to what the court has already said on Blakely but today it issued a summary order containing the following Blakely tidbit:

Marmorato appeals from the court’s denial of his FED. R. CRIM. P 33 motion for a new trial based on ineffective assistance of counsel. Marmorato also appeals from the court’s denial of his request for a downward departure based on diminished mental capacity. Further, in light of the Supreme Court’s recent decision in Blakely v. Washington, 124 S.Ct. 2531 (2004), Marmorato has, within the last week, appealed his sentence on Sixth Amendment grounds. We do not here decide Marmorato’s Blakely-based claim. We will address that challenge in a separate opinion or order to be issued at a future date.

US v. MARMORATO, No. 03-1659 (2d Cir. Aug. 10, 2004) (summary order), http://www.ca2.uscourts.gov:81/isysnative/RDpcT3BpbnNcU1VNXDAzLTE2NTlfc28ucGRm/03-1659_so.pdf#xml=

Perhaps the lack of any reference to Fanfan and Booker suggests that the court may be prepared to act substantively on Blakely claims before the Supreme Court decides those two cases but, then again, maybe it means just the opposite.

Posted by: Alex E. | Aug 12, 2004 12:36:02 AM

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