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August 20, 2004

When will Booker and Fanfan be decided?

With the Acting Solicitor General describing the state of federal sentencing in dire terms (background here) and with so many federal courts and cases awaiting a ruling, I have to think the pressure on the Supreme Court to decide Booker and Fanfan very quickly will be considerable.

After all, a number of circuit and district courts have decided not to directly grapple with the implications of Blakely until the High Court acts (example here), at least one US Attorney has filed a district wide motion to "Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines" (details here), and now we have magistrates freezing prisoner Blakely claims until the Supreme Court starts sorting out these matters (article here).

Yet, as I noted here, "to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions." Moreover, the Justices are obviously deeply split on all these complicated and important questions. And, though the Fourth and the Sixth Circuits feel comfortable issuing consequential orders with opinions to follow (details here), I think the Supreme Court will appreciate the need for a written opinion to accompany its holdings.

So, adding all this up, when will Booker and Fanfan be decided? I am predicting after Halloween, but before Thanksgiving (although, depending on what the opinion says, the day the decision comes down may feel like Halloween or like Thanksgiving for many). Anyone else willing to make guesses in the comments about when Booker and Fanfan will be handed down?

August 20, 2004 at 02:14 PM | Permalink


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Received today(August20,2004) from US Attorney in Oregon:
On April 15, 2004, defendant John Clark (not real name)was convicted by a jury on eleven felony charges. Sentencing is currently scheduled for September 7, 2004. Defendant Clark is on release pending sentencing. The United States Supreme Court's decision in Blakely v. Washington...potentially effects the sentencing in this case, as there are a number of United States Sentencing Guideline enhancements in dispute. The Suptreme Court has granted certiori in two cases (Fanfan and Booker). Briefing has been expedited and the Court will entertain oral argument in these two cases on Monday, October 4, 2004. It is anticipated that, by agreeing to consider these cases, and by doing so in an expedited manner, the Court is likely to issue definitive guidance on the applicability of the Blakely decision to the United States Sentencing Guidelines and,if so applicable, what procedures and to be utilized by federal courts to sentence defendants convicted of federal crimes.
Accordingly, the parties in this case jointly request that this Court postpone sentencing and schedule a status conference on November 23, 2004, at which time a final sentencing date may be scheduled. Attorney Jack T. Ripper concurs with this request.

Posted by: Defendant | Aug 20, 2004 8:59:08 PM

The Supremes will issue their ruling on Monday, November 29, while we are still recovering from Thanksgiving. You heard it here first.

Posted by: SM | Aug 21, 2004 1:18:45 PM

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