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Federal prosecutors and criminal defense lawyers everywhere are finding it difficult these days to keep up with developments in the courts over the impact of the U.S. Supreme Court’s decision last month in Blakely v. Washington — and specifically whether Blakely‘s logic spells doom for the federal sentencing guidelines. Although higher courts routinely allow issues to “percolate” in the lower courts, it is beginning to appear that the Blakely issue is boiling over and could return to the U.S. Supreme Court’s docket sooner rather than later. Here in Philadelphia, one federal judge applied Blakely Tuesday in a ruling that effectively reduced a confessed drug dealer’s sentence by 15 years after concluding that he no longer had the power, after Blakely, to make factual findings that could have supported a sentence of 30 years or more. And the 3rd U.S. Circuit Court of Appeals is also clearly poised to weigh in soon on the Blakely issue. In two pending cases, 3rd Circuit panels have asked for supplemental briefs on the effects of Blakely, and one of those cases could be argued as early as tomorrow. So far, the 3rd Circuit has been silent, but several other federal circuits and a handful of district court judges around the country have already registered their thoughts on the matter — with varying results. On Monday, the 5th Circuit, in an opinion authored by Chief Judge Carolyn Dineen King, declared that the federal guidelines survived Blakely and are constitutional. In United States v. Pineiro, King found that the Supreme Court “has repeatedly blessed the [federal sentencing] guidelines and upheld them against sundry constitutional challenges.” She concluded that, at least for now, the federal guidelines must be upheld. “While we are bound to follow Blakely, as an inferior court we are also bound to examine the Supreme Court’s prior pronouncements and guidance regarding the nature of the guidelines. That examination reveals … a number of the court’s prior cases, including cases that reject various constitutional challenges to the guidelines,” King wrote. The Pineiro ruling officially created a circuit split, coming on the heels of Friday’s decision from the 7th Circuit in United States v. Booker in which a divided panel overturned a sentenced as violative of Blakely. Writing for the majority, 7th Circuit Judge Richard A. Posner concluded that application of the guidelines violated the Sixth Amendment as interpreted in Blakely. Posner, in an opinion joined by Judge Michael S. Kanne, concluded that “ Blakely dooms the guidelines insofar as they require that sentences be based on facts found by a judge.” But in a spirited dissent, 7th Circuit Judge Frank H. Easterbrook said: “Today’s decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon.” The 2nd Circuit also acted quickly, handing down a decision in United States v. Penaranda that urges the Supreme Court to take up the issue as soon as possible. The en banc decision in Penaranda noted that, in the wake of Blakely, thousands of past, present and future federal criminal cases are now in doubt. In a rare move, the 2nd Circuit “certified” three questions for the U.S. Supreme Court to answer, and urged the justices to order “an expedited briefing and hearing schedule, in order to minimize, to the extent possible, the impending crisis in the administration of criminal justice in the federal courts.” A handful of federal district court judges have also declared the guidelines unconstitutional, including Judge Paul Cassell in Utah and Judge Ellen Huvelle in the District of Columbia. Now a Philadelphia judge has joined that list, issuing an opinion Tuesday that explained his reasons for refusing to apply guidelines enhancements in the case of a confessed drug dealer. In his nine-page decision in United States v. Leach, U.S. District Judge Stewart Dalzell focused on the 7th Circuit’s highly technical debate over whether any of the lower federal courts has the power to apply Blakely and declare that the federal sentence guidelines are unconstitutional. Easterbrook voted against declaring the guidelines unconstitutional, arguing that applying Blakely to the guidelines would trespass on the Supreme Court’s prior decisions in Mistretta v. United States and Edwards v. United States. But Dalzell said he agreed with Posner’s view that neither Mistretta nor Edwards addressed the key issue in Blakely — the guidelines’ effect on the defendant’s Sixth Amendment rights. As a result, Dalzell concluded that he should apply Blakely now and that the federal guidelines enhancement scheme cannot survive in its wake. “To blind ourselves to Blakely‘s teaching in the name of a procedural prerogative … would ignore the presence of an elephant in the federal criminal courtroom,” Dalzell wrote. “Federal criminal sentencing is simply too urgent and important to indulge such formalism until such time in the indefinite future when the Supreme Court gives its definitive word,” Dalzell wrote. According to Dalzell’s opinion, Frederick Leach had entered an open guilty plea to charges of conspiracy to distribute more than five kilograms of cocaine, and more than 50 grams of crack cocaine. He also confessed to carrying a gun and to distributing cocaine within 1,000 feet of a school. Prosecutors urged Dalzell to impose a sentence in the range of 30 years to life. But Dalzell found that such a sentence would be unconstitutional under Blakely because it would require that he make a series of factual findings that were not included in Leach’s guilty plea. “Under the teaching of Blakely and Booker, we … will make no enhancement to Leach’s sentence that he has not, by his admission, already agreed to,” Dalzell wrote. Prosecutors argued that Leach’s criminal history score under the guidelines should be enhanced by three points because he was on probation and his crime was committed within two years of his release from jail in 2000. But Dalzell found that such an enhancement would violate Blakely, and that Leach’s sentencing range was therefore 188 to 235 months. Assuming that the guidelines may still be applied, Dalzell ruled that Leach’s sentence should be 188 months “because of his remorse and minor role.” In his closing paragraph, Dalzell said he would impose the same sentence if the guidelines could not legally be applied. But Dalzell’s decision may soon be eclipsed by a decision from the 3rd U.S. Circuit Court of Appeals which will be binding on all federal judges in Pennsylvania, New Jersey, Delaware and the Virgin Islands. In two cases, the 3rd Circuit has already asked for supplemental briefs addressing the effects of Blakely. In United States v. Mussare, prosecutors said John Mussare, 21, and William Bruce, 22, tortured a man for 12 hours in his apartment because he and his roommate failed to repay money they had borrowed for drugs. U.S. District Judge Malcolm Muir sentenced Mussare to 210 months in prison and Bruce to 235 months. But defense attorney Peter Goldberger argued in a supplemental brief that his clients’ cases must be sent back for resentencing in light of Blakely because the trial judge granted the prosecutor’s motion for an “upward departure” from the guidelines range, as well as an enhancement for “extreme conduct.” Assistant U.S. Attorney Theodore B. Smith III, in his supplemental brief, argued that Blakely does not render the federal guidelines unconstitutional. Smith also argued that, even if Blakely does apply to the federal guidelines, Mussare and Bruce failed to raise any such objections at the time of their sentences. As a result, he argued, the appellate court must review the sentences for “plain error.”

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