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October 18, 2005

Briefing on Blakely's applicability to restitution and forfeiture

As detailed in this post, last month the Third Circuit sua sponte voted to rehear en banc three appeals in which the issue is whether Blakely and Booker applies to orders of restitution and forfeiture.  A helpful reader has alerted me that the Third Circuit oral argument in these cases is slated for the morning of Tuesday, November 1, at 9:30am, and he has also kindly forwarded to me all the briefs filed as part of the en banc proceeding.  These briefs make for interesting reading, and I have provided them for downloading below.

October 18, 2005 at 02:22 PM | Permalink


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Prof. B: Isn't what the 3rd Circuit has been doing all along (remanding every single Booker-error case) really the same thing as finding that Booker error can never be harmless and therefore constitutes structural error? JMW

Posted by: JMW | Oct 18, 2005 3:43:37 PM

Washington's Supreme Court (the home of Blakely) has recently ruled that Apprendi and Blakely do not apply to restitution. See State v. Kinneman, at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.opindisp&docid=760519MAJ

Posted by: Tracy S | Oct 19, 2005 12:09:23 PM

I got to tell you, the case, US V Mays which was ruled today by the 9th circuit is a clear indication how restitution is extreme punishment. According to this case, even after you do your time, probation and whatever fines, restitution. The US attorney can still file for a civil claim for balance of the restitution. Also, the district court can order a garnishment against your property or paycheck. How can a person get his life back, if he's subjected to these treatments? Are congress and the courts saying that convicted felons are screw for life. Some rehabilitation we have.

Posted by: a | Oct 19, 2005 2:11:12 PM

I think JMW's take on the Third Circuit's protocol is reasonable. See U.S. v. Davis, 407 F.3d 162, 164 (3d Cir. 2005) (sur denial of rehearing en banc):

Where the District Court imposed a sentence greater than the maximum authorized by the facts found by the jury alone, the outcome of sentencing was altered to the defendant's detriment. Mandatory enhancement of a sentence in violation of the Sixth Amendment is prejudicial and affects the substantial rights of the defendant. As we have noted, "imposing a sentence not authorized by law seriously affects the fairness, integrity, and reputation of the proceedings." Evans, 155 F.3d at 252 (citing United States v. Dozier, 119 F.3d 239, 244-45 (3d Cir. 1997)). In cases where a defendant's sentence was enhanced based on facts neither admitted to nor found by a jury, therefore, the defendant can demonstrate plain error and may be entitled to resentencing. See United States v. Hughes, 401 F.3d 540 (4th Cir. 2005) (finding plain error and remanding for resentencing because defendant - who was sentenced to 46 months due to judicial factfinding where the jury verdict authorized only a 12-month sentence - demonstrated that his substantial rights were affected).

Posted by: Anon | Oct 19, 2005 3:46:34 PM

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