Wednesday, August 11, 2004

A full Blakely Plate

The News

More Enron news is available from the Houston Chronicle here.

Only a few days away, the National Association of State Sentencing Commission's annual conference will take place in Santa Fe, NM on August 15. New Mexico Business Weekly has more information.

Law.com reports, "Attorneys Agree to Fight New Corporate Sentencing Rules," that the American Bar Association voted Tuesday to contest proposed new sentencing rules that reward wayward companies that surrender private legal documents to prosecutors. So, what is Blakely's reach with respect to corporations? Unfortunately, I have not been able to post some interesting articles which discuss Blakely's possible impact in the realm of anti-trust law due to costly registration requirements for accessing the articles. A sort of monopoly, I guess.

Federal courts

The Tenth Circuit just decided US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir., Aug. 10, 2004). The interesting Blakely aspect of this case is that the defendant mounted a Blakely challenge to the restitution award. The court denies his attack with this curious footnote:

n1 Following the Supreme Court's recent opinion in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), Mr. Wooten submitted a supplemental authority letter pursuant to Fed. R. App. P. 28(j) in which he contends that the restitution order also violates Blakely. Mr. Wooten's Blakely argument fails for the same reason as his Apprendi argument, which is that the amount of the restitution award does not exceed any prescribed statutory maximum.

That seems to miss the point of Blakely entirely, does it not? I find it odd that the court failed to offer any additional explanation or tackle the issue of restitution and Blakely.

Also a bit odd, or maybe troublesome, the Eleventh Circuit just issued a ruling in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004). Sentencing Law and Policy has covered this case extensively, so I refer you to that post. In a nutshell, the Eleventh Circuit has continued to bar some defendants from raising Blakely claims.

US District Judge Philip G. Reinhard may have also made a questionable call in US v. Lowe, 2004 U.S. Dist. LEXIS 15455 (N.D. Ill. Aug. 9, 2004). The court denies Lowe's habeas petition because:


Blakely itself does not declare its retroactivity, and the Supreme Court has indicated a strong likelihood it will not be given retroactive effect in Schriro v. Summerlin, 159 L. Ed. 2d 442, 124 S. Ct. 2519 (2004) (holding that Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556 (2002), announced a new procedural rule not retroactively applicable to cases already final on direct review). See United States v. Traeger, No. 04 C 2685, 2004 WL 1609132, *3 (N.D. Ill. July 8, 2004) (ruling that Blakely is not retroactive for purposes of paragraph 6 of § 2255).

As Doug Berman points out, that's not entirely right.

State courts

State ex rel. Romley v. Dairman, 2004 Ariz. App. LEXIS 113 (1 CA-SA 04-0110)(Ariz. Ct. App., Aug. 10, 2004) presents an interesting question: What about victim's rights? Despite passing on the question of whether Blakely applies to the guidelines, the court says the following regarding vicitm impact statements:


(1) it is clear to us that the trial court will need to consider Blakely when providing for the particular type of sentencing proceeding (judge or jury) at which the victim has rights, and (2) regardless of the type of sentencing proceeding that Blakely constitutionally requires, the trial judge has a statutory and Arizona constitutional mandate to allow for the presentation of permissible evidence by a victim at a sentencing proceeding whether that proceeding is before the trial judge, the jury, or a combination of the two. See Ariz. Const. art. 2, § 2.1(A)(4) (victims have the right to "be heard at any proceeding involving a post-arrest release decision, a negotiated plea and sentencing") (emphasis added); A.R.S. § 13-4410 (requiring that a victim be notified of her rights, including the right "to make a victim impact statement" and "to be present and heard at any presentence or sentencing proceeding") (emphasis added). Victims' rights are not restricted to sentencing proceedings conducted by the court. They must also be provided for in sentencing proceedings that are constitutionally required to be undertaken by a jury.

Time travel is impossible (for now): I've been told that this post, originally stamped on Tuesday at 6:35pm could not have referenced events that have not happened. Fair enough. I've corrected the mistake and promise to keep my DeLorean under 88mph.


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