Why Kaua may be the circuit decision of the month (so far)

January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year.  Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.

But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:

• The decision rejects an effort to expand the ambit of the "prior conviction" exception to the Apprendi-Blakely rule, and thus reinforces the Ninth Circuit's view that Blakely announced a bright line. 

• The decision disagrees with the Second Circuit's ruling in Brown v. Greiner (basics here, commentary here) addressing a similar issue in New York sentencing law.

• Because the state lost, and because Kaua rejects a considered view of Hawaii's Supreme Court, the posture of this case suggests cert. might be sought (and might be granted?) to explore the status and scope of the "prior conviction" exception.

• The Ninth Circuit's willingness to enforce its bright line view of Apprendi and Blakely in a habeas setting strongly suggests that the Circuit will not look kindly upon the state of California's efforts to preserve its sentencing system in the wake of Blakely.  Though I suspect the Supreme Court will be examining California's Blakely dodge before California habeas cases make their way to the Ninth Circuit, Kaua will loom especially large if the Supreme Court decides not to take a California Blakely case soon.