Petitioner's reply brief in Cunningham

I just received a copy of the petitioner's reply brief in Cunningham, the California Blakely case to be argued in the Supreme Court on October 11.  That brief can be downloaded below; the petitioner's opening brief can be accessed here, the respondent's brief is here.  Here are parts of the reply brief's introduction:

The State of California and its amicus claim that under DSL [California's sentencing law], the upper term is the statutory maximum for Sixth Amendment purposes because a judge may impose the upper term based on the jury's verdict alone.  Therefore, they maintain, the imposition of an enhanced sentence based on the judge's own determination of factors in aggravation is constitutional.  However, their position rests on tortured reasoning and the same arguments raised by the state of Washington in Blakely, but soundly rejected by this Court.

The state and its amicus further attempt to fit the square peg of the DSL into the round hole of constitutionality carved out by this Court in Booker.  To accept their convoluted logic is to accept the conclusion that Booker implicitly overruled Blakely.  Although the DSL and the revised federal system may have some comparable features, they are different in at least one constitutionally-significant regard -- the DSL allows for judicial factfinding in imposing sentence beyond the statutory maximum authorized by the jury's verdict, while the federal system does not.

Download Cunningham.rom.pdf

Related posts coving Cunningham:

• What do Justices Alito and Roberts think about bright lines?
• Getting excited for Cunningham
• Cunningham cert grant: taking stock and reading up
• Cunningham coverage category archive