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October 26, 2004

Coping with Blakely

I am back from Atlanta after having a chance to speak about Blakely with federal District Court Clerks and Executives. And, as well put by my insightful co-presenter Professor Marc Miller, "the clerks and administrators were an interesting crowd — as much for what they didn't say as for what they did." Specifically, no one gave us the impression that the "sky was falling," although we could feel concerns about the possibility of more trials and the prospect of a wave of habeas petitions. But much more palpable than any focus on Blakely specifics was the sense that court administrators are often not provided all the funds and personel they need, and that Blakely may just further burden an already over-burdened system of federal court administration.

Meanwhile, I return to discover that the Third Circuit today found its own way to cope with Blakely in US v. Trala, 2004 U.S. App. LEXIS 22264 (3d Cir. Oct. 26, 2004). The court turn away two (plausible) Blakely claims by saying one matter concerned a question of law, not fact ("whether an offense is a 'crime of violence or a controlled substance offense' is a legal determination, which does not raise an issue of fact under Blakely"), and that the other matter did not involve an issue of disputed fact ("Blakely and Apprendi apply only where there is a resolution of disputed issues of fact that results in a sentencing enhancement beyond the statutory maximum.... Here, there was no contested evidence about the amount of money that was taken. Therefore, the amount of restitution was not a disputed issue of fact under Blakely.").

Relatedly, today the Tenth Circuit today also found a way to affirm an order of restitution over a Blakely challenge in US v. Lewis, 2004 U.S. App. LEXIS 22269 (10th Cir. Oct. 26, 2004):

We recently held that a restitution order does not violate either Blakely or Apprendi if it does not exceed the statutory maximum restitution amount or the value of the damages to the victim. United States v. Wooten, 377 F.3d 1134, 1144 n.1 (10th Cir. Aug. 10, 2004). The district court here imposed restitution pursuant to 18 U.S.C. § 3663, which does not specify a statutory maximum for restitution. Moreover, Lewis does not, and has not, challenged that the restitution exceeds the amount her victims lost. Thus, under our holding in Wooten, the restitution Lewis was ordered to pay under 18 U.S.C. § 3663 does not exceed a statutory maximum and does not violate Apprendi.

October 26, 2004 at 11:36 PM | Permalink


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I am the fiance' of an inmate who has received a Life Sentence and is serving right now at the Federal Pen. Leavenworth. He is under the 3 Strikes Law for drugs. He is not a violent offender as in a serial killer or rapist. His first offense which he served time for was called "Manufacturing", which actually was one Marjuanna Leaf in a styrofoam cup. His name is Jeffery Collins.
He is trying to get an appeal based on what is happening with Blakley, Booker and others. If there is anything that you can do to help, it would be very much appreciated. We cannot afford private lawyers, and there are many things that should have caused either a mistrial or lower sentencing that are in his discoveries and trial transcripts. I have a copy of all, as does Jeff.
Thank you for your conscious efforts.
Mary Kaufmann
5118 Mallett Dr.
Port Richey, Fl. 34668

Posted by: Mary Kaufmann | Oct 27, 2004 10:45:55 AM

I think it's time to start putting those certain people who really belong there away for good. Rapists and killers don't deserve to live.

Posted by: Joe | Oct 28, 2004 2:34:31 PM

Well maybe, Joe. I do know we need to make our judical system a lot tighter and not be so scared to go for the death penalty.

Posted by: Evelyn | Nov 2, 2004 1:35:29 PM

The problem with the death penalty is it takes so long for the process and costs the tax payers too much money.

Posted by: mark | Jan 25, 2005 11:33:39 PM

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