Monday, July 26, 2004

Motion to Expedite in US v. Bijou

Well, the hits just keep on coming.

Jimmy Bijou is requesting that briefing for his petition to the Supreme Court, filed July 12, which raises a Blakely challenge to his sentence, be expedited. The motion says that the National Association of Criminal Defense Lawyers will file a petition on Bijou’s behalf Wednesday, "addressing the suitability of this case as a vehicle to decide the questions presented by the government in Fanfan and Booker."

Bijou appeals from a an unpublished per curiam opinion of the Fourth Circuit, available here. Unlike Booker and Fanfan, Bijou's case is not a drug case, but a conviction for possession of a firearm by a convicted felon. In his appeal to the Fourth Circuit, Bijou argued that his sentence of 240 months violated Apprendi because  his sentence was enhanced "based on conduct charged in two counts that were dismissed." Relying on United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000), the court rejected Bijou's appeal because, "Apprendi does not require that a jury decide facts that increase a guideline range but do not increase the statutory maximum sentence."

Bijou’s cert petition is now available. The question presented is:

Whether a fact necessary for an increase in offense level under the United States Sentencing Guidelines must be alleged and proved according to the requirements of the Sixth Amendment as set forth in Blakely v. Washington, 2004 WL 1402697 (June 24, 2004)?

On page 16 of the petition, Bijou explains why his case is an "ideal" vehicle for resolving the Blakely mess:

This case has features which render it ideal for resolving the question of whether a fact necessary for an increase in sentence from a base offense level must be proved according to the procedures mandated by Apprendi and Blakely. First, this case is on direct review, and petitioner explicitly preserved the federal constitutional issue in the district court and in the Fourth Circuit. As a result, there is no procedural barrier to this Court’s considering the question presented.

Second, the Sixth Amendment violation was not harmless. The district court elevated petitioner’s sentence based on its finding that he possessed drugs in connection with the firearms. This finding increased petitioner’s sentence from the otherwise applicable base offense level by a factor of 10 years.

Last, this case is a stark illustration of the usurpation of the jury’s role by sentencing courts applying the Guidelines. The holdings in Blakely and Apprendi reflect "the need to give intelligible content to the right of jury trial" which is "a fundamental reservation of power in our constitutional structure." Blakely , 2004 WL 1402697 at *7. In this case, the same judge who excluded tainted drug evidence from the jury turned around at sentencing and used the same evidence to double the applicable sentencing range. The Court should grant certiorari to address the constitutionality of the Sentencing Guidelines under Blakely and Apprendi. 

Update: I edited this post to replace some of my words with those of the filing.

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