The Third Circuit chats about Blakely

In the world of sentencing, you can run, but you cannot hide from Blakely. Well, actually, the en banc courts in the Fourth and Sixth Circuits have been able to run and hide from a written opinion for some time, but I am sure a full account of their orders in Hammoud and Koch are coming real soon.

A full two months after Blakely was handed down, a handful of federal circuit courts — the 1st, 3rd, 10th and DC Circuits, by my count — have still managed to avoid any significant Blakely rulings to date. (The Federal Circuit, to my knowledge, does not have jurisdiction over any criminal cases, though I wonder if anyone out there is working on Blakely-related patent applications.)

The Third Circuit, however, is trying to get on with the business of deciding sentencing cases and has thus had to chat a bit on the record about Blakely. Specifically, in US v. Dickerson, 2004 WL 1879764 (3d Cir. Aug. 23, 2004), a case which is interesting in part for its discussion of guidelines departures, the Third Circuit dropped this noteworthy footnote:

We will address the Government's arguments regarding Dickerson's downward departure notwithstanding the fact that they involves sentencing issues that are completely based on the Federal Sentencing Guidelines, which have recently come under attack in the wake of the Supreme Court's decision in Blakely. We do so because the question here involves the application of a downward departure, rather than an upward departure or a sentencing enhancement. Thus, unless the entire Guidelines regime falls, the decision in Blakely is not clearly implicated here. Further, in response to questioning by the Court at oral argument, the parties conceded that no Blakely-related problems are likely to arise on the facts of this case.

Meanwhile, another decision from the Third Circuit this week, US v. Pepsny, 2004 WL 1873996 (3d Cir. Aug 23, 2004), includes this somewhat cryptic paragraph on Blakely:

In a notice to us subsequent to oral argument, [the defendant] DiFeo, citing Blakely challenges the nine-level increase to her base offense level for having caused losses in excess of $400,000. On appeal, however, DiFeo did not contest the computation of the dollar sums included in the amount of loss calculation (i.e., she did not dispute the propriety of the judge's fact-finding). Rather, she simply argued that these losses should not have been included in the calculation (i.e., she took issue with the application of the Sentencing Guidelines). Thus, while we have rejected DiFeo's attack on the District Court's Guidelines application, we have not said anything regarding the underlying factual determinations. Since we remand for resentencing, DiFeo can attempt to raise the Blakely issue in the District Court.

Finally, in the unpublished US v. Coplin, 2004 WL 1790169 (3d Cir. Aug. 09, 2004), the Third Circuit briefly discussed Blakely in the context of an Anders brief. Based on the defendant's various factual admissions, the court in Coplin explained that "without delving into the many complex questions raised by Blakely, we conclude that under any interpretation of Blakely, Coplin has no nonfrivolous ground for appeal." And at the tail end of a discussion of Apprendi and Almendarez-Torres, the Third Circuit added this entertaining tidbit:

We are absolutely bound by those decisions, for it is the "[Supreme] Court's prerogative alone to overrule one of its precedents." State Oil Co. v. Khan, 522 U.S. 3, 20 (1997). Even if we believe that the foundation of a prior Supreme Court decision is thoroughly undermined, it is up to the Supreme Court to complete the demolition of its own decision.