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The Ninth Circuit U.S. Court of Appeals joined the Blakely fray Wednesday, ruling that the Supreme Court decision bars federal judges from using facts not found at trial to increase sentences. Defense attorneys praised the 2-1 ruling in United States v. Ameline, 02-00011, and said it will help judges figure out what to do with hundreds of cases thrown into disarray by the high court’s end-of-session opinion, Blakely v. Washington, 04 C.D.O.S. 5539, which called into question federal sentencing guidelines. “It’s got a lot of guidance,” Northern District Federal Public Defender Barry Portman said of Wednesday’s ruling. “It does something that none of the other opinions have done — look at consequences.” But not everyone was so sure the opinion would clear up the confusion. “It stops sentencing dead in its tracks in certain types of cases. . . . The only thing a judge can do is impose a sentence that is the minimum,” said one district judge within the Ninth Circuit who asked to remain anonymous. “District court judges should move very slowly in sentencing to allow the Supreme Court to speak on this.” Judge Richard Paez wrote the opinion, joined by Judge Kim Wardlaw. Judge Ronald Gould dissented, arguing that courts should wait for the Supreme Court to sort things out. Dozens of judges have tackled Blakely, and at least four appellate courts have split about whether the case, which threw out Washington state’s sentencing guidelines, applies to federal courts. The Ninth Circuit’s move came the same day the government filed for certiorari on two Blakely-related decisions. Calling the fallout “a wave of instability,” acting Solicitor General Paul Clement asked the Supreme Court to clear up whether Blakely applies to the federal guidelines and, if so, how. “The courts facing the problem have developed a range of mutually inconsistent approaches to federal sentencing. Those conflicting approaches could lead to the need for thousands — or even tens of thousands — of resentencing proceedings once the legal issues are settled. It could also lead to debilitating uncertainty about the proper length of federal sentences, which could cripple other aspects of the system, including plea bargaining practice,” Clement wrote, asking the court for expedited review. If the justices agree, they could hear arguments even before the official start of the October term. The Ninth Circuit’s decision also coincided with the second day of the Ninth Circuit Judicial Conference in Monterey, where it quickly swept through the crowd of 500 judges and lawyers. Copies of the 45-page ruling were immediately handed out in the lobby of the Monterey Conference Center — just one hour after Deputy Attorney General James Comey laid out the government’s position on Blakely. “I share the pain that is felt throughout this room,” Comey said in his speech to conference attendees. Although some legal experts have urged Congress to intervene in the controversy even before the Supreme Court can revisit the issue, Comey said the government would prefer to hear from the high court first. “We want to go slow on a legislative fix. We don’t want a quick fix for something that will leave us in a worse position,” Comey said. As judges proceed with sentences, prosecutors want judges to put on the record alternatives in case the Supreme Court eventually sends things “in a different direction,” Comey said in an interview after his speech. “We don’t want to have to go back and resentence everyone,” Comey said. One case the government is appealing comes directly from district court — the defendant was sentenced after Blakely was released June 24. The other came down before the high court ruling and, if accepted, should decide whether Blakely is retroactive. Comey said the government is holding to its stance that Blakely does not apply to the federal sentencing guidelines at all. If the high court finds otherwise, prosecutors want the justices to completely toss out the guidelines and return to pre-1984 discretionary sentencing. The Department of Justice says the guidelines are not “severable.” Wednesday, the Ninth Circuit rejected that argument. “The . . . guidelines will still promote [certainty in sentencing] even if the requirements for judge fact finding by a preponderance of the evidence are severed as violating the Sixth Amendment in circumstances like those confronting [the appellant],” according to the opinion. “Although severance would change how those facts are determined, and by whom, severance would have no effect on the congressional goal of achieving consistency of sentences.” Ameline deals with a Montana man who was sentenced after a plea deal to 12 1/2 years in prison even though he did not admit to possessing enough methamphetamine to merit that high a sentence. The Ninth Circuit panel, including Gould, the dissenter, said it would have overturned the defendant’s sentence even without Blakely. The office of Northern District U.S. Attorney Kevin Ryan did not want to comment on whether the Ninth Circuit ruling will affect his assistants’ trial strategy. Spokesman Matthew Jacobs said only that prosecutors “look forward to whatever direction the courts will provide.” Portman said he hopes the Supreme Court waits to revisit Blakely to see how the Ninth Circuit and other circuits handle cases before “throwing out the baby with the bathwater.” He believes Ameline makes things manageable for now and pointed to footnote 20 for several suggestions by the court for how to handle pending and upcoming cases. Those suggestions include resentencing defendants based on facts in plea agreements or found by juries, convening special sentencing juries or bifurcating guilt and penalty phases of trial and giving juries special verdict forms to instruct them on the introduction of sentencing evidence. The trial judge who urged caution pointed out that even with those suggestions, the fog hasn’t exactly cleared. The case could still be taken up en banc, and if the panel is reversed, judges would again have to shift gears. “Yes, it gives some direction, but is it the direction you ought to follow? Is it a permanent direction?” the judge asked. “I’m going to move carefully.”

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