Friday, July 16, 2004
United States V. Einstman - "We have to look a human being in the eye and pronounce his fate..."
The opinion handles a number of Blakely issues including the constitutionality of the SG, severability as well as a number of other topics. This opinion is distinct from the others thus far in that it endeavors to discuss some of the more “human” aspects of sentencing. Read it and I think you’ll see what I mean.
For quick review, I have selected a few passages from the opinion (but you really should read the whole thing):
As to point one, I continue to believe - along, apparently, with several member of the United States Supreme Court, as well as a number of my brothers and sisters in various district courts - that the necessary implication of Blakely is that the USSG as they currently exist must be unconstitutional.
As to point 2: I have read the Seventh Circuit's majority opinion in Booker, Judge Easterbrook's spirited dissent in that case, and the Fifth Circuit's opinion in United States v. Pineiro, 200 WL 1543170 (5th Cir. July 12, 2004), as well as the Government's Blakely brief. I, like Judge Posner, conclude that we should not simply adhere to the Guidelines system until the Supreme Court clarifies its position on the USSG. I cannot improve on Judge Posner's articulation of the fallacy in the Government's insistence that lower courts must pretend that Blakely never happened and blindly follow Mistretta and its progeny - precedents of whose constitutionality my own Circuit Court of Appeals is obviously mistrustful, see United States v. Penaranda, 2004 WL 1551369 (2d Cir. July 12, 2004)(certifying questions concerning the constitutionality of the USSG after Blakely to the United States Supreme Court). [*16] I therefore adopt his reasoning as my own on this issue. I take the liberty, however, of adding a word from the perspective of a district judge.
I agree wholeheartedly with the Government's position that the USSG are not severable, so the unconstitutionality of the provisions concerning the judicial fact-finding of sentencing enhancements necessarily means that the entire USSG scheme falls.
The result - the return to indeterminate sentencing, in which judges are free to consider all relevant factors and to sentence the defendant anywhere between the statutory minimum (if there be one) and the statutory maximum n3 - should not be seen as a negative. [*23] I seriously doubt that today's district judges will fail to consult the Guidelines, or fail to be guided by them in most cases, simply because those provision are now in fact guidelines rather than mandates.