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Over the past eight months, the business of sentencing criminals in the federal courts has been anything but routine, as the lower courts have grappled with the impact of two U.S. Supreme Court decisions. But while the issues have percolated at a busy pace around the country, the 3rd U.S. Circuit Court of Appeals has been oddly silent — and continues to be. For district court judges, two recent 3rd Circuit decisions confirmed what many already knew to be true: that in the coming months they will be busy resentencing a slew of defendants whose original punishments can no longer stand in the wake of Booker v. United States. But one of the decisions was remarkable more for what it didn’t say than for what it did say. With a single sentence near the end of a lengthy decision, the court hinted that there had been a conversation among all of the court’s judges on an issue that has split the circuits — whether resentencing is required for all defendants with direct appeals pending even if they failed to raise Booker-style claims in the lower court. Writing for a unanimous three-judge panel in United States v. Davis, U.S. Circuit Judge Dolores K. Sloviter noted that the three defendants had challenged their sentences under Booker. Sloviter then disclosed a decision that seems to have been made by the entire court, writing: “In light of the determination of the judges of this court that the sentencing issues appellants raise are best determined by the district court in the first instance, we vacate the sentences and remand for resentencing in accordance with Booker.” The remark strongly suggested the outcome of about four dozen pending appeals, but offered no discussion of the issue. The 3rd Circuit’s quiet handling of the issue is a stark contrast to the lively discussion going on in other circuits. The 4th Circuit led the way with a decision that called for resentencing all defendants on direct appeal. In United States v. Hughes, 4th Circuit Judge William Wilkins, a former chairman of the Sentencing Commission, wrote that to leave standing a sentence “imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings.” To ignore the error and declare the pre- Booker sentence reasonable, Wilkins said, would be “tantamount to performing the sentencing function ourselves.” The Hughes decision was quickly followed by similar opinions from the 2nd and 6th circuits. But a split erupted when a second panel of the 6th Circuit issued a conflicting opinion, which was followed by an 11th Circuit decision that said resentencing was not automatic for those who had not raised Booker below and that the appellate courts should instead decide those cases on a “plain error” standard of review. Now, in Davis, the 3rd Circuit has opted not to add its voice to the chorus. For court watchers, the 3rd Circuit’s decision to remain mum should come as no surprise. Instead, it appears to be a silent echo of the court’s reticence last summer when the issues first arose. After the justices handed down their June 2004 decision in Blakely v. Washington, which invalidated the state of Washington’s sentencing guidelines, commentators immediately said the federal guidelines, too, were likely to be struck down. One by one, many of the federal circuit courts weighed in. For a few weeks, the issue wasn’t merely percolating; it was boiling over. Perhaps most remarkable was the 2nd Circuit’s decision to employ a rarely used mechanism to “certify” a question to the Supreme Court. But the 3rd Circuit remained silent. And when the justices announced that they would hear a pair of cases on an expedited basis, the 3rd Circuit began issuing orders in all cases that raised Blakely issues that effectively put the cases on hold pending the outcome at the Supreme Court. In the wake of Booker — which held that mandatory federal sentencing guidelines are unconstitutional, but that removing the word “shall” can cure the defect by making them merely advisory — the federal circuits will have a host of issues to address. And some of the more hotly debated questions are likely to make their way back to the Supreme Court’s docket. With its unusual handling of Davis, the 3rd Circuit took a solid position on one question, but did so without participating in the debate. But in a second decision handed down this week, the 3rd Circuit tackled one of the critical questions raised by Booker. In United States v. Ordaz, a unanimous three-judge panel ordered a resentencing in a case where the lower court judge — and not the jury — had determined the quantity of drugs sold by the defendant and added points to his sentencing score for being a leader or organizer, for use of firearms in the drug conspiracy and for obstruction of justice. That was the easy part of the decision since Booker clearly says such defendants must be resentenced. The more vexing question was whether Cosme Ordaz’s sentence was also faulty due to the lower court’s finding that he had a prior felony drug conviction. Ordaz’s lawyer, Steven A. Morley of Morley Surin & Griffin, argued that the fact of prior convictions should have been submitted to the jury. The 3rd Circuit disagreed, finding that the U.S. Supreme Court rejected the argument that the fact of a prior conviction must be found by a jury in its 1998 decision in Almendarez-Torres v. United States. Sloviter, in an opinion joined by Senior Judges Edward R. Becker and Walter K. Stapleton, conceded that Morley had a potentially valid argument, but found that it was not the prerogative of a lower court to overrule a Supreme Court decision. “We do not gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the court’s decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries,” Sloviter wrote. “However, the Supreme Court has made clear that ‘if a precedent of this court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls,’” Sloviter wrote. As a result, Sloviter concluded that “the holding in Almendarez-Torres remains binding law, and nothing in Blakely or Booker holds otherwise. Thus, because we are bound by Almendarez-Torres, we hold that the district court’s determination regarding the facts of Ordaz’s prior convictions did not violate the Sixth Amendment, notwithstanding that the sentences were based, in part, on facts found by a judge rather than a jury.”

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