Puzzled by Tennessee's Blakely waltz

The Tennessee Supreme Court's decision in Gomez (details here), which finds Blakely inapplicable to Tennessee's sentencing scheme, is remarkable for many reasons.  But its most remarkable feature is that the ruling seems to rest on a complete misunderstanding of Apprendi and Blakely.  In the words of a very knowledgeable lawyer who wrote to me about the opinion, "It's just dead wrong."

The majority in Gomez repeatedly emphasizes that Tennessee's sentencing provisions do "not mandate an increased sentence upon a judge's finding of an enhancement factor," slip op. at 26, to support its ruling that Blakely is inapplicable to Tennessee's sentencing scheme.  But an increased sentence was not mandated by the Washington guidelines at issue in Blakely or the New Jersey statute at issue in Apprendi or the federal statute at issue in Jones or the capital statute at issue in Ring.  Indeed, the constitutional relevance of merely exposing a defendant to a heightened punishment based on a judicial fact-finding, but still leaving it to the judge's discretion whether to impose the heightened punishment, was extensively briefed in Blakely itself.  And in footnote 8 of the Blakely opinion Justice Scalia asserts that it is immaterial for Sixth Amendment purposes "[w]hether the judicially determined facts require a sentence enhancement or merely allow it."

Given the Booker ruling and that fact that the pre-Booker federal guidelines did mandate increased sentences, perhaps the confusion in Gomez can be attributed to the confusing work of SCOTUS in Booker.  But, tellingly, the state of Tennessee in this Blakely litigation conceded that Blakely applied to Tennessee's sentencing system AND an august Task Force has worked hard on a legislative Blakely fix (details here) because everyone understood that Blakely applies to a sentencing system which merely authorizes, but does not mandate, longer sentences based on facts not found by a jury or admitted by the defendant.

Perhaps I am missing some hidden wisdom in Gomez, but my initial take is that the Tennessee Supreme Court just got it wrong.  And, as a result, we now can ponder the interesting questions of (1) whether the Supreme Court might ASAP grant cert. in Gomez or another case from Tennessee to clarify this issue, and (2) whether state supreme courts in California or Ohio or other states, eager to dodge Blakely, might adopt the "reasoning" of Gomez.