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The U.S. Sentencing Commission on Wednesday reaffirmed its view that its sentencing guidelines are constitutional, in the face of the most serious challenge to their validity since they were first promulgated 17 years ago. Commission Chairman Ricardo Hinojosa, a district court judge in the Southern District of Texas, announced that the commission will be filing its own brief asserting the guidelines’ constitutionality in an upcoming pair of Supreme Court cases in which defense lawyers argue that the guidelines violate the Sixth Amendment right to trial by jury. Those cases, United States v. Booker, No. 04-104, and United States v. Fanfan, No. 04-105, will be argued Oct. 4, the first day of the Court’s upcoming term. They were scheduled on an expedited basis to give lower courts an answer to the question of whether the federal guidelines were invalidated by the high court’s June 24 decision in Blakely v. Washington. In the 5-4 Blakely ruling, the Court said a Washington state sentencing scheme similar to the federal system was unconstitutional because it allowed judges rather than juries to determine facts that increased criminal sentences within statutory maximums. The ruling’s author, Justice Antonin Scalia, said in a footnote that “we express no opinion” on whether the federal guidelines are affected, but in the chaotic weeks since, almost every federal circuit and more than 50 district judges have grappled with the applicability of Blakely, and federal sentencing has been suspended or delayed in some districts. “The federal sentencing system has fallen into a state of deep uncertainty and disarray,” Acting Solicitor General Paul Clement told the Court in urging it to review the post- Blakely cases. The Blakely issue was discussed for barely a minute of the seven-member commission’s 15-minute meeting, but it has occupied the attention of several commissioners and staffers for weeks. At first, according to one source, the solicitor general’s office, part of the Justice Department, balked at the commission’s desire to file its own brief. “The Court likes to hear the government speak with one voice,” said the source. But the Justice Department relented in light of the fact that the Sentencing Commission is viewed as a judicial branch, rather than an executive branch, agency and does not need permission to file separately. Commissioners also pointed out that the commission filed its own brief in Mistretta v. United States, the first constitutional challenge to sentencing guidelines, decided in 1989. But the commission’s request to the solicitor general’s office for part its 30-minute argument time was denied. The commission turned to several top Supreme Court advocates in private practice seeking help in drafting its brief, but they turned down the work, not wanting to upset white-collar criminal clients who would probably like to see the guidelines struck down. The commission then hired James Robinson, partner in the D.C. office of New York’s Cadwalader, Wickersham & Taft, to finalize the brief, which is due Sept. 1. Robinson was assistant attorney general in charge of the Criminal Division in 2000 when the high court issued Apprendi v. New Jersey, the precursor to Blakely that first called into serious question the role of judges in sentencing. Commission officials declined to detail publicly what the brief will say, though knowledgeable sources said the commission’s brief, like the solicitor general’s, will attempt to distinguish the federal guidelines from the Washington state program at issue in Blakely. Significantly, the commission’s brief is also expected to sidestep the issue of severability — whether the entire federal sentencing system must fall if the judicial fact-finding aspects are ruled unconstitutional. Commissioners are apparently divided on what position to take. In its own filings, the solicitor general’s office has said the guidelines are not severable, though in a recent reply brief, it seemed to offer alternatives that would preserve the guidelines in some instances. The prospect that the commission is echoing the government’s view on the applicability of Blakely and sidestepping the severability issue is a disappointment, said Douglas Berman, an Ohio State University law professor who is tracking post- Blakely developments on his weblog, Sentencing Law and Policy. Berman asserted that while the Justice Department can be expected to take pro-prosecution stands, the commission ought to have a different and broader perspective that takes the interests of defendants into account. “The commission should be a leader in the post- Blakely world, not a follower,” said Berman.

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