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November 3, 2006

How do Cunningham and Claiborne and Rita intersect?

As detailed here and here, last month's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being a lot about reasonableness and federal sentencing.  In light of today's cert grants in Claiborne and Rita, I am trying to think through the relationships between what (and when) the Court will do with Cunningham.

It seems that the Claiborne and Rita argument won't be until February, but the top-side briefs are due in December.  I have been expecting to see Cunningham decided sometime in January, but now I wonder if its likely to come soon (or come later) because of Claiborne and Rita.  I am pretty confident (and happy) that the cert grants in Claiborne and Rita should limit the need to (over)interpret the meaning of Cunningham for the federal sentencing system.

November 3, 2006 at 05:16 PM | Permalink


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These cert grants reinforce my earlier prediction (posted as a comment on this blog)that the Court will NOT use Cunningham as a means of addressing "reasonableness." Cunningham will be a unanimous opinion upholding California's DSL (as interpreted/rewritten by the California Supreme Court) as not violative of Apprendi/Blakely.

Posted by: Paul | Nov 3, 2006 5:41:38 PM

Correct that they will not use it as the vehicle. Correct that it will be unanimous. Wrong that it will affirm the scheme. Offense facts cant increase the sentence above the mid-point. This means that the defendant is entitled to have them proven to a jury. Blakely stands for nothing else.

Posted by: RW | Nov 3, 2006 6:14:30 PM

I'm glad to see DAB aspiring to refrain from overinterpreting Cunningham's significance for anyone other California prisoners with extended-term sentences. I attended to the argument as a journalist, and I agree with "Paul" that the court appeared poised to defer to the California Supremes' authority to interpret state law in a seemingly ludicrous manner.

Posted by: HBK | Nov 7, 2006 4:42:35 PM

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