The Second Circuit's Backup Plan

Post from Ron:
Reader Alex Eisemann just brought to my attention a decision from the Second Circuit that appears to give up on the court's unusual move (background here) to certify Blakely questions to the Supreme Court. Here is a link to the opinion in United States v. Mincey, which is functionally a unanimous decision of the en banc court (known in local parlance as a "mini en banc").

The court more or less recognizes that its certification strategy is not holding water:

Although our Court, acting in banc, has certified to the Supreme Court questions concerning whether Blakely applies to the Guidelines, we now conclude that, pending the Supreme Court’s answers to these questions, either in response to our certification or in the decisions in Booker and Fanfan, or both, it is appropriate to give the district courts of this Circuit guidance as to whether and how to employ the Guidelines when sentencing defendants. We therefore proceed to decide the sentencing aspects of this case on their merits.

After a review of pre-Blakely precedent on jury factfinding in guideline sentences in the Second Circuit, the court refuses to revisit the question until the Supreme Court speaks:

The pending issue for us is whether we should now abandon the prevailing law of this Circuit because of arguments based on what the Blakely decision might portend for the future of Guidelines sentencing. We conclude that we should not. In the first place, the Supreme Court explicitly stated in Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Secondly, because of the Supreme Court’s grants of petitions for certiorari in Booker and Fanfan and the setting of an expedited schedule, we can expect to be advised soon in the event that the Supreme Court intends to apply Blakely to the Guidelines. Under these circumstances, we will adhere to the law of this Circuit.

We therefore reject appellants’ arguments that, in this Circuit, the Sixth Amendment now requires every enhancement factor that increases a Guidelines range to be pleaded and proved to a jury beyond a reasonable doubt. Unless and until the Supreme Court rules otherwise, the law in this Circuit remains as stated in Garcia, Thomas, and our other related case law. We conclude that the district court did not err in sentencing defendants in accordance with the Guidelines as previously interpreted by this Court.

In so holding, we expect that, until the Supreme Court rules otherwise, the courts of this Circuit will continue fully to apply the Guidelines.... The mandate in this case will be held pending the Supreme Court’s decision in Booker and Fanfan. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part. Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its opinion that address the defendant’s sentence until after the Supreme Court’s decision in Booker and Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker and Fanfan.

This new strategy, like the certification gambit, takes the Second Circuit out of the business of crafting a viable sentencing system in the months that must pass before the SCOTUS rules. What a shame. We need as much variety of experience as possible if and when Congress turns to the job of redesigning the federal sentencing system, and the judges in the Second Circuit could have contributed some terrific ideas here.