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Responding quickly to the aftermath of its June decision on criminal sentencing, the Supreme Court on Monday agreed to quickly consider two cases that will determine if federal sentencing guidelines are now unconstitutional. The Court added the cases United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105, to its docket for Oct. 4, the first day of oral argument this fall. Lawyers in the cases were given an expedited briefing schedule. The Court heeded the plea of Acting Solicitor General Paul Clement to consider the cases in the aftermath of Blakely v. Washington, the June 24 ruling that said juries, not judges, must determine the facts that enhance sentences. Blakely involved Washington state’s sentencing scheme and explicitly said the federal guidelines — similar in important ways — were not at issue. But in the weeks since, dozens of district and appeals court judges have ruled that Blakely does apply to the federal guidelines. “The result has been a wave of instability in the federal sentencing system that has left the government, defendants, and the courts without clear guidance on how to conduct the thousands of federal criminal sentencings that are scheduled each month,” Clement told the Court in his petition in the case of Freddie Booker, a convicted Wisconsin cocaine dealer whose 30-year sentence was thrown out because of Blakely by a divided panel of the 7th U.S. Circuit Court of Appeals. In the other case granted review by the Court on Monday, another convicted cocaine dealer, Ducan Fanfan, was sentenced in Maine four days after Blakely was handed down. Applying Blakely, the judge sentenced Fanfan to five years in prison instead of 15. The government appealed to the 1st U.S. Circuit Court of Appeals on July 16, and before that court ruled, it invoked a rarely used procedure to appeal it to the Supreme Court without waiting for an appellate decision. Clement had asked for a rare September session to speed the Court’s resolution of the lingering questions, but suggested the first day of the Court’s fall term as an alternative. The Court’s actions were welcomed as a necessary step to end the disarray in federal courts. “The Court created a mess, and in my humble opinion they needed to figure it out,” said Roscoe Howard Jr., partner at Sheppard Mullin Richter & Hampton’s D.C. office. Howard, who was U.S. Attorney in the District of Columbia until May, now advises white-collar criminal defendants. “As a defense attorney, you are scratching your head, and the client is looking to you for help. It’s hard to advise them.” Howard adds, “How can everything we’ve been doing since the guidelines began in 1987 now be wrong?” Two hours will be allotted for arguments. If the Court follows Clement’s suggested plan, one hour will be devoted to whether Blakely applies at all to the federal guidelines — specifically the provisions that allow judicial determination of enhancement factors. The other hour will deal with the issue of severability: If Blakely is found to apply to the judicial determination features of federal sentencing and they are found unconstitutional, will the entire sentencing guideline system have to be scrapped? The docketing of the two sentencing cases will put Justice Stephen Breyer in the spotlight. Breyer, an early member of the U.S. Sentencing Commission that fashioned the guidelines at issue, was the main defender of the guidelines in the Blakely case, and could be a crucial vote now that the constitutionality of the federal guidelines is at stake. But before Breyer became a justice 10 years ago, when he was a judge on the 10th U.S. Circuit Court of Appeals in 1989, he raised the possibility that if he were ever faced with a major sentencing case, he might recuse to avoid the appearance of conflict of interest. In the 1st Circuit case United States v. Wright, Breyer announced he would not recuse in guidelines cases “unless they involve a serious legal challenge to the guidelines themselves.” Booker and Fanfan clearly pose a fundamental challenge to the guidelines, but with Breyer no longer on the commission and now serving on a Court where no other judge can substitute for him, his recusal seems only a faint possibility. The Court’s decision Monday to review the cases was included on a list of orders that it had previously announced it would release on Monday. Usually, orders lists are generated by votes taken at the Court’s private in-person conferences. But during recent summer recesses, when justices have scattered worldwide for vacations, teaching assignments and conferences, the Court has still issued orders lists without ever having met. Instead, insiders say the Court’s votes and deliberations are conducted through some combination of phone calls, faxes and discussions among law clerks and their justices. Editor’s note: For a related article, see the New York Law Journal story Lawyer Who Tried ‘Blakely’ Logic in ’01 Again Fails in Bid for LowerSentence.

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