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While the 2nd U.S. Circuit Court of Appeals awaits clarification from the U.S. Supreme Court on the applicability of the Blakely decision to the federal sentencing guidelines, judges in the circuit continue to forge ahead and address the guidelines’ constitutionality under the Sixth Amendment. Southern District Judge Jed Rakoff said Wednesday that Blakely, which bars a defendant from being sentenced above a prescribed maximum amount of time based on a fact neither admitted by a defendant or found by a jury, in effect renders the federal guidelines unconstitutional. Judge Rakoff addressed the issue in United States v. Marrero, 04 Cr. 0086, where defendant Erik Marrero had pleaded guilty to one count of being a felon in possession of a firearm. Under the sentencing guidelines, Marrero would have been eligible for a sentence ranging from 21 to 27 months in prison. The Department of Probation’s presentence report recommended an upward adjustment to 24 to 30 months because the serial number on the .32 caliber revolver he admitted possessing had been obliterated. Rakoff, saying he was being more lenient than the guidelines would have allowed, imposed a 21-month sentence. The problem is that Marrero did not admit the serial number had been obliterated at his guilty plea in March. After Blakely v. Washington was decided on June 24, invalidating that state’s sentencing scheme, Rakoff granted an adjournment of Marrero’s sentence for both sides to evaluate the applicability of the ruling. On Monday, Rakoff, noting that he could not postpone sentencing indefinitely while the scope of Blakely was being resolved, found the decision rendered the guidelines unconstitutional. Noting the 2nd Circuit’s plea for “expedited guidance” on Blakely through certification of questions to the Supreme Court in United States v. Penaranda, 03-1055, Rakoff said “this Court, when confronted with the sentencing in this case, did not believe it had the luxury of waiting further for such guidance.” He said neither side requested a further adjournment on Marrero’s sentencing date, “and, even if they had, there are both constitutional and practical limits on how long a district court may defer a criminal sentence, especially where, as here, the defendant is detained.” Recognizing that the Supreme Court said in Blakely that the “federal guidelines are not before us, and we express no opinion on them,” Rakoff cited Deputy Attorney General (and former Southern District U.S. Attorney) James B. Comey’s memo on July 2, which instructed prosecutors to argue that the federal courts may not invalidate the federal guidelines and that, on the merits, the Washington state system invalidated by Blakely was distinguishable from the federal system. And while the government in Marrero also argued that previous constitutional challenges to the federal guidelines have been rejected by the Supreme Court, Rakoff said Blakely was different. “The fact that the Supreme Court has previously upheld the constitutionality of the Sentencing Guidelines in cases addressing challenges different from those presented by Blakely in no way disempowers a district court from ruling upon their constitutionality in a case raising a Blakely-based, Sixth Amendment challenge,” he said. Even the government, as amicus in Blakely, had questioned whether the differences between the federal scheme and the Washington state system were constitutionally significant, and Rakoff said “virtually every court that has compared the two systems” has concluded that, if anything, the federal guidelines are even more vulnerable under Blakely. Therefore, Rakoff said, the enhancement to Marrero’s sentence for obliterating the serial number on the gun, “cannot be constitutionally imposed.” Rakoff agreed with the government’s position that portions of the guidelines cannot be severed while the rest of the system is left intact. “The Guidelines, on their face, represent an intricate set of weights and measures, of upward enhancements and downward adjustments, that were intended to balance, however, imperfectly, a host of competing sentencing considerations,” he said. “To accept the ‘downward’ aspects and ignore the ‘upward’ aspects would be to frustrate the will of Congress.” Reverting to the “previous regime” that existed before the advent of the guidelines in 1987, Rakoff said he looked to factors and reasoning that would have resulted in a sentence of 24 months under the guidelines. In the end, the judge decided to give the defendant 21 months in prison “chiefly because the Court gave greater weight than the Guidelines would have permitted to the sympathetic, even pitiable features of the defendant’s background, such as his repeated but unsuccessful attempts to rid himself of his recurrent heroin addiction and his refusal, even in the throes of such addiction, to become a drug dealer or to engage in theft except in moments of desperation.” Sean Hecker of the Legal Aid Society represented Marrero. Assistant U.S. Attorney Daniel Stein represented the government.

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