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August 30, 2004

Yet another helpful (future FSR) resource

I am pleased to be able to share another draft article that is forthcoming in the next issue of the Federal Sentencing Reporter (which will be FSR's second rapid-fire issue covering Blakely). The article, available for downloading below, is by Ian Weinstein and Nathaniel Marmur and is entitled "Federal Sentencing During the Interregnum: Defense Practice as the Blakely Dust Settles." As the title suggests, this article should be especially helpful to the federal defense practitioner, although everyone involved in sorting out Blakely ought to benefit greatly from this piece. Here's an introductory snippet:

In this period of uncertainty, and perhaps for some time into the future, counsel must think about Blakely at the inception of a case and consider its effect on pretrial motions, including motions to dismiss indictments, discovery and evidentiary issues. We must also question the continued vitality of what we thought was settled law, including the constitutionality of judicial fact finding in mandatory minimum sentencing and the "prior conviction exception" of Almendarez-Torres. Of course, Blakely presents novel issues as well. Counsel must start thinking about bifurcated trials, sentencing juries, jury instructions on sentencing issues and Blakely waivers. In short, defense counsel must consider arguing Blakely's implications from bail through habeas petitions.

I am also pleased to report that the entire contents of FSR's first Blakely issue, entitled "The Blakely Earthquake," is now available electronically via the on-line service Caliber at this link. The basic details and full contents of that FSR issue can be found here and here.
Download during_the_interregnum.pdf

August 30, 2004 at 05:29 PM | Permalink


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On page 5, the Interregnum article raises a question that may not be a question. The article says that a defense lawyer might want to defend the Guidelines, if a particularly unappealing defendant might be at risk of getting a discretionary sentence at or near the statutory maximum. Regardless of whether the Guidelines are constitutional or whether they can be constitutionally applied, can a judge, taking the Croxford III approach, issue a sentence greater than one permitted by the Guidelines without an ex post facto problem? The question applies to crimes committed before June 24, 2004.

Posted by: Michael Ausbrook | Aug 30, 2004 11:35:49 PM

That's "Berman," of course.

Posted by: Michael Ausbrook | Aug 31, 2004 8:13:37 PM

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