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June 20, 2005

Booker strikes again (aka Back in Black)

I am still taking in the Supreme Court of California's Blakely opinion today in Black (basics here), but Gene Vorobyov at Appellate Law & Practice seems on the right track when he comments in this post that Black "seems spectacularly wrong."   Also, Michael Ausbrook at INCourts has a great post here about Black, which astutely observes that there will now be many cert. petition coming from California and that one should be granted so that the Supreme Court can clear up the Blakely-Booker confusion.

One particularly insightful reader wrote to me to express his view that "it looks like the Cal SCt majority has adopted all of the arguments the State and the SG made in Blakely . . . and that the Court rejected!"

That insightful reader is none other that Jeff Fisher, the lawyer who argued Blakely, and he had these further comments about Black:

What's incredible to me about Black is that (like the Tennessee decision in Gomez) every single reason the California SCt advances for upholding its sentencing system was advanced by the State and the SG in Blakely, rebutted in my reply brief, and squarely addressed in Blakely. These courts seem to assume that Booker made certain new factors important in assessing when Apprendi applies to a sentencing system, but the relevance of those very factors was litigated thoroughly in Blakely itself.

Read the "summary of argument" section in the SG's brief in Blakely [provided for download below]. It sounds exactly like the Cal SCt opinion, and I think could be quoted to show the Cal SCt has just adopted the very reasoning rejected in Blakely.  My reply brief in Blakely [also provided for download below] goes point-by-point through these arguments.

Download united_states_amicus_brief_in_blakely.pdf

Download blakely_merits_reply_brief.pdf

UPDATE: An interesting AP news reports on Black can be accessed here.  This piece ends with a wonderful understatement by Black's attorney, Eileen Kotler: "I do not think they wanted to change the sentencing scheme so they found a way to uphold it," Kotler said. 

June 20, 2005 at 08:17 PM | Permalink


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This guy is going to win easy on a writ of habeas -- the decision is clearly "contrary to" Blakely. The Ninth will affirm, and the Supreme Court might take cert to clear the inter-state split, and the Supreme Court will affirm the Ninth. The Cal. Supremes must have been smoking a special brand of crack when they wrote this one. What's shocking is that Moreno went along with it as he is a former district judge who one would think would understand Booker better --- i.e. that it was not changing Blakely but applying an odd remedy in the federal sentencing context only.

Posted by: Joe | Jun 25, 2005 4:11:18 AM

I'm sorry, is that a typo? You said the ninth is going to be affirmed by the SC but they have been "smoking crack"?

Law student

Posted by: wallace Francis | Jul 14, 2005 2:38:36 AM

I need help! I would like to learn more about sentencing laws and appeals. My name is Toni Sevchuk, my husband, Gennadiy Sevchuk has been convictived of murder 2 and sentenced to 15-life. We had A Public defender and now my husband has another PD who is appealing the case. I'm trying to learn as much as possible. My husband was drinking all day and in the car of a "friend" who murdered someone outside of the car. My husband didn't know it was going to happen and now he has 15-life. I'm devastated ...he is 28 and we have a 3 year old daughter. WE are a Russian Christian family, and poor. Anyone with information to help us please contact me? toni sevchuk in Sacramento California

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