A closer look at Recuenco

I am somewhat surprised that, as the Supreme Court Term winds down, that we have still not yet seen an opinion in the Blakely error case of Washington v. Recuenco (background here).  Perhaps the Justices have been astutuely awaiting the publication of an article by Steve Sanders on the case, entitled "A Closer Look at Washington v. Recuenco," in the forthcoming issue of the Federal Sentencing Reporter. Fortunately, the wait is over, because I can now provide a proof of the article for downloading below.  Here is how it starts:

Last year, the Supreme Court granted certiorari to decide whether violations of the Sixth Amendment's jury-trial right, as articulated in Blakely v. Washington, are structural error, requiring automatic reversal. In an earlier article I explain why Recuenco presents a substantial federal question for the Supreme Court's resolution. That article also suggests that Recuenco presents a "perfect vehicle" for resolving the question presented because the Washington Supreme Court would be free to affirm Recuenco's enhanced sentence were the U.S. Supreme Court to conclude that Blakely errors do not require automatic reversal.  This article elaborates on that critical assumption and highlights an issue that, although not addressed by the parties, may require the Supreme Court to fine-tune its harmless-error jurisprudence to accommodate Blakely-type claims.

Download fsr18.4_Sanders on Recuenco.pdf