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October 29, 2004

More on Blakely-ized indictments and retroactivity

Yesterday's Blakely reports from the federal district courts included noteworthy developments and rulings on Blakely-ized indictments here and Blakely's (non-)retroactivity here. In the course of trying to "close the book" on this week's developments, I noticed two more cases on these topics decided recently that only of late showed up on Westlaw.

In US v. Jamison, 2004 WL 2385003 (W.D. Wis. Oct. 21, 2004), Magistrate Judge Crocker filed a thoughtful report recommending that the court deny motions by the defendant to strike sentencing allegation from the indictment. Along the way, Judge Crocker explains that "pragmatically, unless the court stays all of its pending criminal trials, the most risk-free course of action [while the law is unsettled] is to continue the current practice of allowing sentencing allegations in the indictment and holding a bifurcated sentencing hearing."

In US v. Falodun, 2004 WL 2397612 (D. Minn. Oct. 25, 2004), Judge Montgomery joined the growing list of district judges to rule on the record that Blakely is not to be applied retroactively: "Even were Blakely's holding to apply to the USSG, this Court concludes that Blakely would not apply retroactively to matters on collateral review." However, as some earlier comments have flagged here, this ruling is among many that do not fully grapple with the impact of the burden of proof on the overall retroactivity analysis.

October 29, 2004 at 04:58 PM | Permalink


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