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September 30, 2004

Off-line for a while

I am about to head out (and thus be off-line) for the day to attend an OSU alumni event in Cleveland. (I am reminded of one of my favorite lines from my favorite movie, "Hello Cleveland!" Of course, as you all already know, this site goes to 11.)

To read while I am away, I was hoping to have the Minnesota Sentencing Guidelines Commission's Long-Term recommendations on Blakely, which this MSGC website says is now available. But I cannot get the link to work. Oh well, I hope I can post a working link upon my return.

In the meantime, I have been thinking of late about questions I might ask counsel at oral argument were I a Justice. Perhaps readers have also been thinking about such things and while I am away folks can use the comments to suggest questions they would like to hear asked at argument. I'll start:

To the lawyer for the government: How many indictments have been Blakely-ized nationwide since June 24?

To the lawyers for the defendants: Do federal judges have authority to convene sentencing juries in the absence of congressional approval?

September 30, 2004 at 02:11 PM | Permalink


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I believe Blakely clearly applies to the Guidelines, but the Court’s precedents have been inconsistent in this area. In order to maintain credibility with the Court, I think it is necessary for defense council to admit the Court precedent that would need to be overturned in applying Blakely to the Guidelines. While no Sixth Amendment claim was involved, the substance of at least three cases is at odds with Apprendi and Blakely.

Question to the lawyers for the defendant:
On page 23 of Defendant Booker’s brief to the Court, the defendant argues: “No case decided by this Court prior to Apprendi is ‘fundamentally at odds’ with the view that Blakely applies to federal sentencing, as petitioner contends.” It is clear that this Court has never examined a Sixth Amendment challenge to the Federal Sentencing Guidelines.

However, how can this Court find for Booker/Fanfan and not – in effect – reverse the Court’s holdings in – at a minimum – the following cases:
United States v. Dunnigan, 507 U.W. 87, 98 (1993) (“Upon a proper determination that the accused has committed perjury at trial, an enhancement of sentence is” Constitutional);
United States v. Watts, 519 U.S. 148, 157 (1997) (“[A not guilty verdict] does not preclude a finding by a preponderance of the evidence that” a defendant’s sentence should be enhanced for the acquitted conduct);
Edwards v. United States, 523 U.S. 511, 514 (1998) (“[T]he sentencing judge here would have had to determine the total amount of drugs, determine whether the drugs consisted of cocaine, crack, or both, and determine the total amount of each--regardless of” the jury’s determination.)?

How does this Court not reverse the effect of these holdings and still rule for Booker and Fanfan?

Posted by: DEJ | Oct 1, 2004 9:29:57 PM

Of course ruling for the defendants Booker and Fanfan would negate the "effect" of those opinions. But court decisions do not "reverse" anything but "judgments" and (perhaps) "holdings." The Dunnigan, Watts and Edwards cases decided the Questions Presented in each case respectively. Questions on which cert was not granted, which were not briefed and argued, and particularly which were not decided, are open for discussion and decision in subsequent cases. For example, in 1943 (or something like that) in Gobitis, the Supreme Court held that compulsory flag salute laws did not violate the Free Exercise of Religion rights of Jehovah's Witness schoolchildren. Two or three years later, in Barnette, the Court held that the same laws did violate those children's Free Speech rights. Barnette certainly negated the effect and signficance of Gobitis as determination of the constitutionality of compulsory flag salute laws, but the later case did not overrule the earlier one (which incidentally remains a valid precedent as an explication and application of the Free Exercise Clause).

Posted by: Peter G | Oct 2, 2004 3:49:06 PM

Hello, I was reading over the input of fan-fan and Blakely vs Washington and Apprendi(sixth Amendement)I really want to know if blakely wins(I prayer to god) how much impact will it have on releasing people charged on conspiracy first defense with no evidence only based on hear-say. Especially in the state of ohio states(huntington wv). It was an unfair hearing like other places. I am just a person that needs help and input on where too go for help with a case. A lawyer(from charleston wv) that we hired took the case and our money and left the case and their were evidences too help reduce sentencing and not destroy and he stop contacting us after we paid the money of the amount he requested. We tried to contact him and wrote, called as well, plus wrote the board and this was 2 years ago,"Noooooo responds"! A family in need of help or guidence. Thanks and God Bless P.S We even as for a copy/copies of the file(info) and he stated that he would send it after he get all of it together and he got sick, we never received it and both brothers gave permission to sent a copy to the mother, wife.

Posted by: Jacinda Roberts | Oct 9, 2004 7:27:18 PM

I am a sister and girlfriend of an inmate who is locked up under this law.

Posted by: Angela N. Wright | Nov 30, 2004 5:25:29 PM

I am engaged to Mr. Watts of US -v- Watt (1997) Could you please tell me what you really think about US-v-Watts. I am having a hard time understanding how this can be done.

Posted by: Kimberly | Jul 7, 2005 8:46:30 PM

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