Close enough for government work

State appellate courts have, perhaps unsurprisingly, endeavored to minimize the impact of Blakely by finding clever ways to affirm previously-imposed sentences even when Blakely issues are implicated. Many of these affirmances are coming from California, though other states are following suit.

For example, in People v. Vaughn, 2004 WL 2223299 (Cal. App. 2 Dist. Oct. 05, 2004), the court affirmed an enhanced sentence by concluding that the judicial findings to support the enhancement were "inherent in the jury's verdict, and required no separate findings by the trial court." Meanwhile, in People v. Washington, 2004 WL 2202033 (Cal. App. 2 Dist. Oct. 01, 2004), the court affirmed an enhanced sentence because "three of the five factors in aggravation found by the trial court are not affected by Blakely and support selection of the upper term [and] there is no reasonable possibility that upon remand the trial court would exercise its discretion other than to again select the upper term." Similarly, in People v. Sylve, 2004 WL 2189339 (Cal. App. 2 Dist. Sept. 30, 2004), the court concluded that even giving "defendant the benefit of the argument as to whether Blakely prohibits several of the factors, this leaves us with two legitimate aggravating factors and no mitigation [and thus the] trial court was justified in imposing the upper term on the burglary count."

And, showing that such affirmances are not only a California phenomenon, in State v. Shaw, 2004 Tenn. Crim. App. LEXIS 826 (Tenn. App. Sept. 28, 2004), the court in a similar way concludes that Blakely problems are of no ultimate consequence:

In sum, we conclude that enhancement factors (2) and (10) were appropriately applied under Blakely, but that the trial court erred in applying enhancement factors (9) and (11). We further conclude that the strong weight to which the trial court assigned the applicable enhancement factors more than justifies the enhanced sentence imposed. Accordingly, we affirm the twenty-four-year sentence.