The importance of waiver

As detailed here, the Office of the Federal Public Defender in the Northern District of Texas filed an amicus brief in Booker and Fanfan to discuss waiver issues, even though such issues are not directly before the High Court. The brief essentially argued that a defendant cannot and does not waive any Blakely rights by simply admitting facts in a plea agreement.

Perhaps the FPD ought to have lodged a copy of this brief in the Eighth Circuit, because in an unpublished case earlier this week the court did just what this amicus brief warned against. In US v. Martinez-Salinas, 2004 U.S. App. LEXIS 21153 (8th Cir. Oct. 12, 2004), the court summarily rejected the defendant's Blakely argument by noting simply that his (pre-Blakely) "plea agreement included stipulations as to drug quantity, protected location, and firearm possession."

Meanwhile, in the same part of the country, we get a waiver-related snippet from the Supreme Court of Colorado in Hulett v. Colorado, 2004 WL 2283440 (Colo. Oct. 12, 2004). The Court in Hulett simply denied certiorari, but Justices Martinez and Bender indicated that they "would grant as to the following issues: [1] Whether a guilty plea including a complete sentence advisement waives the right to have sentence enhancers tried to a jury as required by Blakely v. Washington, 124 S.Ct. 2531 (2004). [2] Whether sentences can be aggravated on the basis of earlier charges that were dismissed."