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October 4, 2004

First reactions to the Booker/Fanfan oral argument

Though I will need many, many posts to fully capture my take on today's oral argument, a few moments of wireless access allow me to provide some quick first reactions.

First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely to the federal system. The pre-argument buzz was that Justices Souter and Ginsburg might shrink away from extending Blakely, but their questions to Acting SG Paul Clement (who did a brilliant job) suggested that they both were firm on this issue.

But oral argument also suggested everyone is still struggling with the remedy after concluding Blakely applies to the federal system. Justice Stevens pressed the SG about how many cases would really be impacted if Blakely applies to the guidelines, and this may be a critical concern for the Justices as they work through the severability question. (This also lead me to reiterate the plea I made here for the US Sentencing Commission to shed more light on this issue by making widely available whatever data it has assembled).

How (and when) the Justices will sort through the severability matters remains the biggest question in my mind after hearing today's arguments. More commentary -- a lot more -- later tonight.

October 4, 2004 at 04:34 PM | Permalink


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» Blakely Argument News from TalkLeft: The Politics of Crime
Bump and Update: Law Prof Doug Berman of Sentencing Law and Policy was also in court. Here's his first take, more tonight: First, I agree with Tom Goldstein's post here that the Blakely five will stay together to apply Blakely... [Read More]

Tracked on Oct 4, 2004 4:43:01 PM

» Post-Blakely Cases Heard Today from ACSBlog: The Blog of the American Constitution Society
The Supreme Court began its term by hearing Booker and Fan Fan, two cases which will decide the fate of the Federal Sentencing Guidlines (for a summary of the Blakely decision and the ensuing chaos, see Blog Editor Jeffrey Jamison's... [Read More]

Tracked on Oct 4, 2004 6:43:00 PM


I have a question I'm not sure you can help me with. My brother was indited on 3 charges involving firearms and explosives. The explosives charge which was for 2 hand grenades was suppressed during the suppression hearing. My brother plead guilty to a charge of being a felon in possession of a hand gun. On Sept 11,03 my brother was sentenced to 9 years.The judge gave him an enhancement for obstruction of justice because the judge said he did not believe my brothers testimony concerning whether the police had actual authority to search his apartment with consent from a woman who claimed to live with my brother, my brother stated all along that this woman did not live with him and that she had her own apartment which the judge acknowledged but then said that he believed she stayed there part time. My brothers sentence was higher because of the grenades that were suppressed and because there were more than 3 firearms. My brother was not given points of for excepting reasponsibility because the judge gave him the obstruction enhancement.My brother was given a 32 with a criminal history catagory of 2 on the sentencing guidlines. The first part of my question is can the Blakely issue help my brother if the federal sentencing guidlines are found to be unconstitutional since my brother only plead guilty to being a felon in possession of a hand gun and did not plead guilty to the grenades or other firearms. Also can it help the obstruction of justice charge since his attorney at the time put in an argument against it? The last part of my question is, My brothers appeal is submitted and his new attorney says it is due to be heard this month, I have read that a supplement to an appeal can be submitted if there are new issues, I asked my brothers attorney if she can raise the enhancement issues now before my brothers appeal is heard and all she said was that she hopes they win the appeal but if they don't she will look into any enhancement issues after the court makes its ruling on the federal sentencing guidlines. I need to know if these issues can be raised now with his current appeal before it is heard or if we have to wait until a decision is made by the Supreme court. I am worried that this new attorney is not doing all she could be doing because when I brought up several serious issues about my brothers case for the appeal all she ever tells me is that she hopes they win the appeal but if they don't they can do a writ. There was major issues with inefective assistince of council, but new attorney said that it is to hard to prove even though the judge made comments about having to do the first attorneys work, the judge even asked my brother if he wanted to get a new attorney but we didn't have the money to hire a new one so he said no, but when my brother did hire the new attorney to take over his sentencing and the appeal the judge would not allow it, the judge said that the old attorney was going to handle the sentencing. My brother was told by his old attorney several different sentences that he faced, the least being 12 months the most being 5 years. We were given a packet that his attorney had put together by a sentencing specialist that showed what his sentence could be even with the obstruction enhancement and it was 5 years at the most. When my brother plead guilty to the charge he had no idea he was facing more than 5 years. He did not want to plead guilty but the attorney told him that if he didn't the judge would be harder on him so he plead guilty to the one charge. My brother told the old attorney that he wanted to assist the prosecuter by giving the name of the person who owned the firearms so that he could try to get a plea agreement before he plead guilty, the attorney kept putting it off and telling my brother the prosecuter was interested, finally after my broter plead guilty he recieved a letter from his old attorney saying that the prosecuter would consider a plea agreement but that he couldn't give any information about the firearms he was being charge with because he already plead guilty and it was to late. One more thing several times during my brothers case the judge made comments on the record about the fact that he did not believe my brother, aren't judges suppose to be impartial? My brothers criminal history was 2 because of a drunk driving conviction he tried to fight but lost and because of an alford plea to an assault and battery charge. His old attorney was suppose to try to have the assault dissmissed or remanded because the judge or prosecuter in that case added to the sentence agreement without having my brother or his attorney at the time sighn it and except it. If you can help soon before its to late I would greatly appriciate it. My brothers case was handled at the federal court in Boston.

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