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Editor’s note: The Supreme Court’s June 24 decision in Blakely v. Washington has thrown federal sentencing procedures into disarray. During oral arguments, the second question asked was whether invalidating the Washington sentencing scheme would also invalidate the federal guidelines. The attorney for Ralph Blakely distinguished the two, as did the federal government. But an avalanche of subsequent court rulings have come down on either side of the issue, showing that such a distinction is not easily made. Justice Sandra Day O’Connor: Well, I assume that if your position were adopted it would invalidate the federal sentencing scheme that we have, too, wouldn’t it? Jeffrey Fisher: I don’t think so, Justice O’Connor. O’Connor: Why not? Fisher: Well, the big difference, the biggest difference between the federal system and the Washington [system], is the federal system is a system of court rules, not a system of legislative mandates. � O’Connor: I can’t see much difference. Your point is that if the same scheme that Washington has were adopted by courts, it’s okay? Fisher: Well, that may well be the case, Justice O’Connor. I don’t think you have to decide the federal — that issue in this case. But this court’s clearly held in Williams and lots of other cases that if a legislature leaves it up to individual judges to decide what kinds of facts they want to consider in meting out sentences, that is fully constitutional. – oral argument colloquy, Blakely v. Washington, March 23 “The federal guidelines are not before us, and we express no opinion on them.” – Supreme Court Justice Antonin Scalia, Blakely v. Washington, June 24 “The court ignores the havoc it is about to wreak on trial courts across the country.” – dissenting Justice O’Connor, Blakely v. Washington, June 24 “The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the guidelines are distinguishable from the system invalidated in Blakely.” – Deputy Attorney General James Comey, memo to U.S. attorneys, July 2 “We have expedited our decision in an effort to provide some guidance to the district judges (and our own court’s staff), who are faced with an avalanche of motions for resentencing in the light of Blakely, which has cast a long shadow over the federal sentencing guidelines. We cannot, of course, provide definitive guidance; only the court and Congress can do that. � We think that the guidelines, though only in cases such as the present one � violate the Sixth Amendment as interpreted by Blakely. We cannot be certain of this. But we cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it.” – Seventh Circuit Judge Richard Posner, United States v. Booker, July 9 “While this court has searched diligently for a way to disagree with the warnings of the dissenters, the inescapable conclusion of Blakely is that the federal sentencing guidelines have been rendered unconstitutional in cases such as this one.” – Utah U.S. District Judge Paul Cassell, United States v. Croxford, July 12 “We are convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts — disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional requirements.” en banc Second Circuit certifying three question to Supreme Court, United States v. Penaranda, July 12 “The dissenting justices certainly thought that the court’s reasoning might foretell the end of the federal guidelines. That prophecy has already been realized in several courts across the country, though those courts have reached no consensus on how sentencing is to proceed after the overthrow of the old regime. � Blakely may have weakened the long-embraced distinction between United States Code maxima and guidelines ranges, but we cannot conclude that Blakely — which explicitly reserved comment on the guidelines — has abolished the distinction’s importance.” – Fifth Circuit Judge Carolyn King, United States v. Pineiro, July 12 “In light of Blakely � a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.” – Senior Sixth Circuit Judge Gilbert Merritt, United States v. Montgomery, July 14 (case went en banc July 21) “We hold that the district judge’s imposition of this sentence after determining the material sentencing facts by a preponderance of the evidence, rather than relying on a jury’s determination of the facts beyond a reasonable doubt, violated Ameline’s Sixth Amendment rights as explained in Blakely.” – Ninth Circuit Judge Richard Paez, United States v. Ameline, July 21 “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. Ultimately, the uncertainty could hinder achievement of the crucial social goals at stake in the criminal justice system.” – acting Solicitor General Paul Clement, petition for certiorari in Booker, July 21

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