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July 15, 2006

Bottom's up in Cunningham

The bottom-side SCOTUS briefs in Cunningham, the California Blakely case, were due earlier this week, and I have a copy of the filing from the state of California as respondent.  (The top-side briefs are available here.)  The California brief, which can be downloaded below, confirms that the case will be as much about reasonableness review and the federal system after Booker as about the California system after Blakely.  Consider this passage from the brief's argument summary:

The constitutionality of the California system is confirmed rather than undermined by the fact that the trial court's discretion in selecting among the three base-range terms is subject to the constraint, set out in California Penal Code section 1170(b), that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime."  Section 1170(b) is not a threshold requirement that renders an upper term sentence unauthorized in the absence of judicial factfinding beyond the verdict alone.  Instead, section 1170(b) is a reasonableness constraint on the court’s selection of a term within the base range after the court has considered all of the relevant circumstances relating to the offense and offender.  The court's selection of a sentence within the base range is reviewed for abuse of discretion.  In this way, section 1170(b) operates like the reforms this Court adopted in Booker.

Download Cunningham_Brief_for_Respondent.pdf

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July 15, 2006 at 12:17 AM | Permalink


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