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The 9th U.S. Circuit Court of Appeals joined the fray last week, 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, No. 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 June 24 opinion, Blakely v. Washington, 124 S. Ct. 2531, which called into question federal sentencing guidelines. “It’s got a lot of guidance,” Northern District of California Federal Public Defender Barry Portman said of the July 21 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 9th 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 9th 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.

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