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The 9th U.S. Circuit Court of Appeals ruled Friday that the Supreme Court’s Blakely decision on criminal sentencing is not retroactive to cases that were finalized before it was issued. The unanimous ruling, Schardt v. Payne, 05 C.D.O.S. 6037, was written by Senior Judge Arthur Alarcon and signed by Judges William Fletcher and Johnnie Rawlinson. The case reached the circuit as an appeal of a habeas corpus petition filed by Dale Schardt, who was sentenced to 204 months in prison after being convicted of raping a child. Schardt had hoped that Blakely v. Washington, 124 S.Ct. 2531, would help his position. The National Association of Criminal Defense Lawyers had filed an amicus curiae brief in support. Blakely is the latest in a string of rulings over the past several years that has dramatically altered criminal sentencing. Blakely tossed out Washington state’s sentencing scheme because it allowed judges to sentence based on facts not found by a jury. Earlier this year, the Supreme Court applied that reasoning to the federal system, ruling federal sentencing guidelines are only advisory with United States v. Booker, 125 S.Ct. 738. Several circuits have held that Booker is not retroactive, but the 9th Circuit has not yet answered that question. Friday’s decision frees up dozens of cases at the 9th Circuit that have been in limbo since Blakely and Booker. Other cases are still waiting for 9th Circuit judges to figure out how exactly to apply the Supreme Court’s recent decisions.

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