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The tumult caused by a U.S. Supreme Court decision striking down a state’s sentencing scheme that allowed a judge, not a jury, to increase a defendant’s sentence, has prompted the 2nd U.S. Circuit Court of Appeals to ask the high court for direction on the federal sentencing guidelines. Taking the unusual step of certifying questions to the U.S. Supreme Court, the circuit said a “prompt and authoritative answer” on whether and to what degree the decision in Blakely v. Washington affects the federal guidelines is needed to “avoid a major disruption in the administration of criminal justice in the federal courts.” The 24-page opinion in U.S. v. Penaranda, 03-1055, and U.S. v. Rojas, 03-1062, was issued late Monday by the full complement of 13 active judges on the 2nd Circuit. It urged quick resolution of the questions raised by Blakely to prevent unfairness to “defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional requirements.” In Blakely, the U.S. Supreme Court found that the Sixth Amendment right to trial by jury was violated when a Washington state judge sentenced a defendant to a term beyond the 49-to-53-month guideline range based on the judge’s finding that the defendant had acted with “deliberate cruelty” in committing the offense of second-degree kidnapping with a firearm. The majority opinion in Blakely said the Court was not passing judgment on the U.S. Sentencing Guidelines. But a dissenting opinion by Justice Sandra Day O’Connor predicted “havoc” on sentencing in federal courts. Writing for the 2nd Circuit, Chief Judge John M. Walker Jr. agreed. Assuming that courts are not paralyzed by Blakely, he said, the decision leaves judges with two options: conclude that Blakely is not implicated “and continue to apply the guidelines as they have been doing since 1987,” or conclude that Blakely applies to the sentencing guidelines and “proceed to select one of several alternative procedural means for implementing it.” “Whichever conclusion turns out to be incorrect, and one of them will, thousands of cases soon will be adversely affected,” Walker said. “The result will be that thousands of defendants, sentenced in accordance with the incorrect conclusion, will have to be returned to court for resentencing, and that, if the court rejects the Government’s position that Blakely does not affect the Guidelines, the Government (at least in those cases where the time for jury fact-finding is long past and the judgment has become final) might be foreclosed from pursuing the sentence it believes to be appropriate.” Walker traced the evolution in Sixth Amendment law on sentencing that began with Apprendi v. New Jersey, 530 U.S. 466 (2000), where the U.S. Supreme Court said that any fact which increases a defendant’s sentence beyond the statutory maximum must be charged in the indictment and proven beyond a reasonable doubt. A second decision, Ring v. Arizona, 536 U.S. 584, (2002), required juries, and not judges, to find beyond a reasonable doubt any fact required for the imposition of the death penalty. “A common characteristic of Apprendi, Ring, and Blakely is that a state legislature had made critical decisions setting the boundaries that the Court held the sentencing judge was not permitted to exceed without either a jury’s fact-finding or a defendant’s admission,” he said. “The question presented in the cases before us is whether the Sixth Amendment also prohibits a sentencing judge from finding facts, not reflected in the jury’s verdict or admitted by the defendant, that form the basis for the applicable adjusted offense level under the administratively-promulgated federal Sentencing Guidelines.” CASE BACKGROUNDS One case involves a defendant named Hector Penaranda, who was found guilty of conspiracy to distribute heroin and cocaine by a jury that specified the conspiracy involved five kilograms or more of cocaine and one kilogram or more of heroin. Southern District Judge Robert W. Sweet found at sentencing, by a preponderance of the evidence, that the conspiracy involved at least 20 kilograms of cocaine and at least 1,200 grams of heroin — findings that Penaranda challenged as a violation of Blakely. In the other case, Luis Rojas had pleaded guilty to conspiracy to distribute five kilograms or more of cocaine. At sentencing, Southern District Judge Allan G. Schwartz increased his sentence after finding that a certain quantity of drugs was involved, that he possessed a firearm and that he played a “managerial role” in the drug conspiracy. Rojas argued to the Second Circuit that these findings “usurped the jury function and violated” his Sixth Amendment rights. “If the Blakely principle applies, then both defendants’ sentences could be invalid,” Judge Walker said. “The problem we face, however, is that we cannot be certain whether a majority of the Supreme Court would extend the reasoning of Blakely to these cases.” While some language in the majority opinion in Blakely suggests that it invalidates sentences in pending cases, Walker said, “the distinct administrative provenance of the federal Sentencing Guidelines may place them outside the ambit of the Blakely principle.” SPECIFIC QUESTIONS Therefore, he said, the circuit was certifying three questions to the Supreme Court: � “Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?” � In the case of Penaranda, did the Sixth Amendment permit Judge Sweet to determine “the quantity of drugs for which a defendant is responsible and upon which his base level and corresponding sentencing range will be calculated” under �2D1.1 of the guidelines? � In the case of Rojas, did Judge Schwartz have the authority to determine the quantity of drugs under �2D1.1, the applicability of a two-level enhancement to the base level for gun possession under �2D1.1(b)(1) and the applicability of a three-level managerial role enhancement under �3B1.1(b)? Recognizing that the Supreme Court’s term has ended, Judge Walker said “we respectfully request that the Court not only entertain this certification, but do at its earliest convenience, with an expedited briefing and hearing schedule.” Monica R. Jacobson of Alvy & Jacobson represented Penaranda. Edward D. Wilford represented Rojas. Assistant U.S. attorneys Helen Cantwell and Joshua A. Levine represented the government.

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