Wednesday, July 28, 2004

Deadline Wednesday

Today is an important day for the Respondents in Booker and Fanfan. Today is the deadline, according to the SG’s suggested schedule, for respondents to file responses to the government’s petitions in Fanfan and Booker.

Case Developments.

Sentencing Law and Policy has news from New Mexico in a case called US v. Pedro Quijada which presents some interesting Blakely meets Almendarez-Torres issues.  This is an interesting case in which the judge has apparently decided that Blakely bars him from making certain findings of fact which relate to the nature of his prior conviction. Is that vague enough?

US v. Sisson, 2004 U.S. Dist. LEXIS 14162(NO.: 01-10185-EFH)(D. Mass., 2004)

US District Judge Edward F. Harrington has made a decision with regards to sentencing:

The Court shall recommence drawing criminal cases on September 1, 2004 in view of the United States Supreme Court's decision in Blakely v. Washington, No. 02-1632, decided June 24, 2004.
Judge Harrington explains his decision, which embraces the reasoning of Judge Presnell in US v. King:

In returning to the criminal draw, the Court shall follow the implications of Blakely on the Sentencing Commission Guidelines as cogently reasoned in the case of United States v. King, No. 6:04-cr-35-Orl-31KRS (M.D. Fla. July 19, 2004), pending further direction by the Court of Appeals for the First Circuit. In brief, it shall treat the Guidelines as unconstitutional in all cases and shall adhere to the statutory commands setting sentences. See United States v. Einstman, 2004 WL 1576622, 6 (S.D.N.Y. 2004). In other words, in all cases, the Court shall handle the sentencing as courts handled sentencing before the Guidelines -- by making a full examination of an individual defendant's personal character, family responsibilities, medical and mental condition, criminal record, and the particular circumstances surrounding the crime and imposing an appropriate sentence within the broad range set by Congress, after deep reflection informed by his [*4]  experience in life and in the law. Despite a return to an indeterminate sentencing scheme, the Court "will continue to rely on the Guidelines as recommendations worthy of serious consideration." King, at 12. The Guidelines are to be considered as guidelines and not as mandates which have destroyed traditional judicial discretion.

News and Analysis.

A few helpful posting from the SCOTUS Blog are online. Lyle Denniston has a post entitled, "Blakely’s impact on state sentencing guidelines." The post discusses the efforts of the National Center for State Courts to decipher Blakely's impact on the states; the report draws a preliminary conclusion that 12 states will be affected by Blakely.
The Boston Herald reports that U.S. District Court Judge Nancy Gertner of Massachusetts will not use the guidelines when sentencing criminal defendants. Interestingly, the last paragraph quotes a defense attorney who thinks that without the benefit of the guidelines Judge Gertner may sentence his client to a longer prison term.
Poll Results. A few days ago, I added a poll question to this site. The poll is located below the “Archives” listing, on the right-hand sidebar. The question is: Assuming that the enhancements in the guidelines are unconstitutional, which of the following remedies is appropriate:

1 - Bifurcation/Sentencing Jury
2 - Apply the portions of the guidelines that are constitutional
3 - The judge should sentence the defendant between the minimum and maximum
4 - Other

As of 8:05am, the results are as follows (total votes, followed by percentage):

(14 – 24%)  - Bifurcation/Sentencing Jury
(19 – 32%) - Apply the portions of the guidelines that are constitutional
(19 – 32%) - The judge should sentence the defendant between the minimum and maximum
(07 – 12%) - Other

To say that this poll is not scientific is an understatement, but I’ll say that I’m not surprised that the results are all over the map.

I’ll leave the poll up only for a few more days, so vote now. If you’d like to suggest a poll question for the next poll, email me.


I'm sorry for being intrusive in to your blog. But I am Melissa and I am a mother of two that is just trying to get out of an incredible financial debt. See my hubby is away in Iraq trying to protect this great country that we live in, and I am at home with our two kids telling bill collectors please be patiant. When my husband returns from war we will beable to catch up on our payments. We have already had are 2001 Ford repossessed from the bank, and are now down to a 83 buick that is rusted from front to back and the heater don't work, and tire tax is due in November.

I'm not asking for your pitty because we got our ownselfs into this mess but we would love you and thank you in our prayers if you would just keep this link on your blog for others to view.

God Bless You.

Melissa K. W.
To see my family view this page. My Family

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