Some (needed?) help for SCOTUS on Sixth Amendment "first principles"

As detailed here and here, this morning was civil at the Supreme Court: the Court released opinions in three civil cases (and the vote alignments in all three cases seem notably unpredictable).  As Lyle Denniston notes, now the earliest-argued case still undecided is "James v. U.S. (05-9264), on whether a state conviction for attempted burglary can be treated as a violent felon under federal armed criminal sentencing law."  More opinions are to be released tomorrow, so maybe then we will finally see a SCOTUS version of "Sweet Baby James."

Of course, Claiborne and Rita are still pending, and my anticipation is starting to build (even though I doubt we will see these decisions until June).  Adding to my anticipation is an e-mail I received from YLS Professor Kate Stith, who reports to me that her student "Richard Re, YLS '08, has a nuanced exposition of the argument [that] Sixth Amendment 'first principles' resolve the apparent tension between Blakely and Booker I, on the one hand, and Booker II, on the other."  That explanation can be downloaded below, and here is a taste to whet your appetite:

If reasonableness review is to be consistent with the Sixth Amendment, then Sixth Amendment doctrine must be re-conceptualized so as to differentiate between sentencing guidelines imposed by legislatures and those generated by judges themselves.  But why would the Blakely and Booker rules apply only when the legislature is involved?  In order to answer this question, we have to return to Sixth Amendment first principles.

Download yls_solving_the_booker_paradox.doc