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November 23, 2004

Blakely/Booker backup

I continue to be curious about — and eager to see data concerning — how many federal sentencings have been delayed awaiting a decision in Booker and Fanfan.  More anecdotal evidence suggesting many postponements can be found today in stories from Tennessee and Texas involving delayed judicial proceedings for two white-collar offenders pending the ruling in Booker and Fanfan.  (A noteworthy previous example can be found here.)

At the US Sentencing Commission hearing last week, I was given the impression that a very large number of the roughly 30,000 federal sentences that should have been handed down since Blakely have been postponed.  But I still have no sense of whether this means 1/4 or 1/2 or even 3/4 of all sentencings have been put on hold (and thus, as noted here, I will be thrilled when the USSC is able to make public the preliminary data it has collected concerning the post-Blakely state of federal sentencing).

Whatever the exact number, it seems clear that, after Booker and Fanfan are decided, the lower federal courts will have a huge backlog of postponed cases to process.  It will be interesting to watch if the Blakely backup has broad ripple effects next year on the administration of justice in the federal courts.

November 23, 2004 at 07:40 AM | Permalink


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I wonder if the data will show the _true_ number of sentencings delayed because of Blakely. A dictate continuing the sentencing hearing from the sentencing judge is but one way such a continuance could come to fruition. For example, the AUSA and the defense attorney could agree that it would be in both of their best interests to delay the prosecution of a case to wait for the Booker & Fanfan outcomes, thus they might agree to a continuance of the pretrial conference. The defendant would file a waiver of speedy trial and the case would be continued, but yet the continuance may or may not reflect that the real reason it's being done is because of Blakely. Similarly, I wonder if AUSAs have held back indicting criminals who would most likely be affected by Booker -- drug conspiracies and fraud cases especially. If they wait for SCOTUS guidance, then they wouldn't have to worry about what factors have to be in the indictment, what level of proof to give to relevant conduct, etc. In my experience, these types of extrajudicial delay tactics seem more prevelant than asking a judge to delay a sentencing hearing on Blakely grounds after the defendant has pled guilty and a PSR has been prepared.

Posted by: District Clerk Battling Blakely | Nov 23, 2004 10:27:19 AM

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