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As courts, prosecutors and defense lawyers around the country await clarification from the U.S. Supreme Court on its decision in Blakely v. Washington, the 2nd U.S. Circuit Court of Appeals has decided that, at least for the moment, the federal sentencing guidelines remain constitutional. The court released a per curiam opinion last week saying it was appropriate to give direction to lower courts given the “considerable consternation and concern” caused by Blakely, which held that a Washington State sentencing scheme that allowed judges, not juries, to make findings that increase a defendant’s sentence beyond a fixed range violated the Sixth Amendment. A three-judge panel of Rosemary Pooler, Robert D. Sack and Reena Raggi rejected the challenge brought by two defendants to the constitutionality of the U.S. Sentencing Guidelines, saying that circuit precedent on the guidelines remains good law until the U.S. Supreme Court says otherwise. The appeals court upheld sentence enhancements for two men convicted of firearms offenses in U.S. v. Mincey, lead docket number 03-1419. The court decided to proceed despite the fact the U.S. Supreme Court has granted certiorari in two cases and has set oral arguments for Oct. 4 on the applicability of the Blakely rationale to the guidelines in two cases, U.S. v. Booker and U.S. v. Fanfan. The panel also decided to proceed while the full 2nd Circuit awaits word from the Supreme Court on its unusual request to accept certified questions on Blakely, made on July 12 in the case of U.S. v. Penaranda. U.S. v. Mincey is the appeal of brothers Tyshea Mincey and DeShawn Ferrell from 2003 convictions for conspiracy to violate federal firearms law, unlicensed firearms dealing and interstate transportation and receipt of firearms. Evidence at a trial before Southern District Judge Charles L. Brieant showed that the brothers traveled several times to Georgia in 2001 and enlisted “straw purchasers” for weapons they shipped to New York for sale. Brieant sentenced Ferrell to 19 years and 6 months in prison and Mincey to 4 years and 3 months. Both sentences were at the high end of the guideline range. They were applied by Brieant based on facts he found by a preponderance of the evidence. Without the enhancements, Ferrell’s guideline range would have been 41 to 51 months in prison. Mincey’s range would have been 10 to 16 months. “The pending issue for us is whether we should now abandon the prevailing law of this Circuit because of arguments based on what the Blakely decision might portend for the future of Guidelines sentencing,” the court said. “We conclude that we should not. “In the first place, the Supreme Court explicitly stated in Blakely that ‘[t]he Federal Guidelines are not before us, and we express no opinion on them,’” the circuit said. “Secondly, because of the Supreme Court’s grants of petitions for certiorari in Booker and Fanfan and the setting of an expedited schedule, we can expect to be advised soon in the event that the Supreme Court intends to apply Blakely to the Guidelines. Under these circumstances, we will adhere the law of this Circuit.” Samuel M. Braverman represented Mincey. Theodore S. Green of Green & Willstatter in White Plains represented Ferrell.

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