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With remarkable speed and an unusually strong push from the solicitor general’s office, the sentencing mess wrought by the Supreme Court’s Blakely v. Washington decision June 24 has returned to the high court’s doorstep. As early as Aug. 2, the justices are expected to announce expedited review of at least one of several post- Blakely lower court rulings that present the issue of whether, and to what extent, federal sentencing guidelines are unconstitutional in light of Blakely. That ruling struck down a Washington state sentencing system — similar to sentencing in more than a dozen states and at the federal level — and requires that juries, not judges, determine any facts that increase a defendant’s sentence. Advocates on both sides appear convinced the Court will take up the issue, but they will be closely watching which cases the justices decide to review, and how quickly, as a sign of the legendary clout of the solicitor general’s office in helping the Court set its agenda. In a second round of filings July 28 and 29, Acting Solicitor General Paul Clement again put the full weight of his office behind the federal guidelines and in favor of fast-track review — including the possibility of a special September sitting of the Court, though inserting the cases into its early October docket is also a strong possibility. Clement, who became acting SG on July 9 after the departure of Solicitor General Theodore Olson, also urged the Court to use two cases of his choosing as vehicles for the review — rather than alternatives suggested by the criminal defense bar. “The disarray is increasing daily,” said Clement in one brief filed with the Court. In another, he wrote, “In light of the profoundly fractured nature of the lower courts’ holdings, it cannot seriously be maintained that the federal courts have adapted well to Blakely‘s teachings.” Usually when a landmark high court decision is promulgated, the Court welcomes a fair amount of “percolation” of follow-up issues that tend to sort themselves out over time before returning for high court review. But with judges at all levels devising their own ad hoc methods for coping with Blakely — often contradictory and likely to produce another wave of appeals — Clement advised the Court that waiting for “further percolation in the lower courts is not a luxury that the federal criminal justice system can afford.” That alarmist tone is rare coming from a solicitor general, and how the high court responds to it “depends on how much the Court trusts the SG,” says Thomas Goldstein of D.C.’s Goldstein & Howe, who filed a brief last week opposing the government on behalf of the National Association of Criminal Defense Lawyers. Behind the scenes, the NACDL has mobilized the forces opposing federal sentencing guidelines and has recruited top Supreme Court advocates, including Goldstein and Seth Waxman, the former Bill Clinton solicitor general and current Wilmer Cutler Pickering Hale and Dorr partner, to manage the seemingly inevitable Supreme Court review. The U.S. Sentencing Commission itself is considering weighing in to defend the guidelines, although it has not yet taken any action. The jockeying over which cases the Court should take is significant, says Ohio State University law professor Douglas Berman, whose Web log, “Sentencing Law and Policy,” has become the leading site for tracking and analysis of post- Blakely developments. The government is offering up cases, Berman says, that are “ugly on the facts,” in which Blakely has resulted in what could seem to the Court and to the public as “underpunishment.” By the same token, the NACDL is spotlighting cases in which judicial determinations of the kind disfavored in Blakely resulted in what could appear to be unfair or excessive sentencing. Both sides, in Berman’s opinion, are banking on what he views as a controversial but valid assumption: that the Court “clearly cares about how its decisions look in the headlines, as well as in the law books.” The two cases offered up by Clement for the Court to review both present defendants whose sentences were drastically reduced in Blakely‘s aftermath. In United States v. Booker, No. 03-104, the U.S. Court of Appeals for the 7th Circuit applied Blakely to toss out the 30-years-to-life sentence of accused Wisconsin crack cocaine dealer Freddie Booker. Without the factors that were determined by the sentencing judge, Booker’s sentence under the federal guidelines would have been 21 years. In United States v. Fanfan, No. 03-105, a federal judge in the District of Maine sentenced another accused cocaine dealer, Ducan Fanfan, just four days after Blakely was handed down. The judge interpreted Blakely to mean that Fanfan’s sentence should be five years instead of 15. The NACDL, for its part, would prefer that the Court review Bijou v. United States, No. 04-5272. A judge in the Western District of North Carolina sentenced Jimmy Bijou to 210 to 262 months for being a felon in possession of firearms, but the judge used as a sentencing factor a drug charge that had been dismissed and had never gone to the jury. Without that factor, Bijou’s sentence would have been less than half as long, Goldstein’s brief asserts. Several other cases highlighted by neither side are also before the justices, including a petition by the state of Washington for a rehearing in the Blakely case itself, and United States v. Penaranda, in which the U.S. Court of Appeals for the 2nd Circuit tried to get the Court’s attention by using the rare — and disfavored — procedure of actually certifying its own Blakely-related questions for high court review. “I expect the Court to deny rehearing in Blakely, as it has done with every rehearing petition in the past several decades,” says Jeffrey Fisher, a Davis Wright Tremaine associate in Seattle who won the Blakely case. As the Blakely backlash makes its way to the high court, lower federal and state courts — as well as prosecutors and defense lawyers — are still grappling with its ramifications. The 4th and 6th Circuits have scheduled en banc arguments in coming weeks on Blakely issues, according to Berman, while other judges have simply set aside all sentencing decisions until the high court rules again. “The landscape changes daily,” says Berman. At the state level, the impact could also be broad — though somewhat less immediate — according to a just-released analysis from the National Center for State Courts. According to Fisher, even in those states with guidelines like the Washington scheme struck down in Blakely, judges are less likely to use the kind of judge-determined factors in sentence enhancement that have put federal sentences in doubt. Many states, he adds are also looking to the Kansas system as a solution. Kansas allows sentence-enhancing factors to be tried before a jury in the main trial or in a separate proceeding, similar to capital sentencing procedures. Says Fisher: “None of the states are getting whipped up into the frenzy that the feds are in now.”

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