Monday, August 23, 2004

Midwest focus

US v. Paulus

Some old district court news (old to me, at least) from Wisconsin which I just became aware of.

In US v. Paulus, 2004 U.S. Dist. LEXIS 16427 ( No. 04-CR-083)(E.D. Wis., Aug. 6, 2004), Judge William C. Griesbach rejects the defendant's Blakely challenge on the grounds that the defendant admitted the facts which were the basis for the enhancement. But, Judge Griesbach also discussed additional ground upon which the defendant's Blakely claims would fail. In that discussion, he explains what he would have done had the Blakely argument not been faulty:

I also note, however, that even if the defendant had not admitted the relevant facts as part of the plea agreement, the court would not be barred from considering those facts in determining an appropriate sentence. Where Blakely prevents the United States Sentencing Guidelines from being constitutionally applied, the result is not to impose a sentence that ignores aggravating factors and takes into consideration only mitigating factors. Nor is the proper response to convene a jury to determine the myriad of factors that can and should legitimately impact the sentence that should be imposed in a case where there is no dispute as to the defendant's guilt. Instead, where Blakely precludes the application of the Guidelines, the conclusion that most reasonably follows is that the Guidelines should not be applied at all and sentencing should proceed under the law as it existed prior to the enactment of the Guidelines. See United States v. Croxford, 2004 WL 1521560, * 12, *13 (D Utah July 12, 2004); see also United States v. Einstman, 2004 WL 1576622 (S.D.N.Y. July 14, 2004); and United States v. Mueffleman, 2004 WL 1672320 [*12] (D. Mass. July 26, 2004). Of course, under pre-Guideline law, the court is not bound by the Guidelines, but may determine an appropriate sentence considering the sentencing factors set forth in 18 U.S.C. § 3553(a) based on the credible evidence before it. Croxford at * 14. And while the court would not be bound by the Guidelines, it would still be free to look to them as guidance in fashioning a fair and just sentence since they embody the careful consideration and study on the part of the Sentencing Commission of the myriad of factors that should be properly considered in determining an appropriate sentence. Id., at * 15. That is precisely what this court would in fact do, as it has done in other cases where the issue has been raised. Consideration of the Sentencing Guidelines as a guide, as opposed to a mandate, will also allow sentencing courts to minimize the wide disparity in sentencing across the country for similarly situated defendants that led to the enactment of the Guidelines in the first place. The court therefore concludes that neither Blakely, nor Booker, preclude consideration of all of the factors relevant to determining a just and fair sentence under the guidelines and will proceed to consider whether a departure is warranted in this case.

Jason Carson v. State of Indiana

And in Indiana, Marcia Oddi has blogged on another Indiana Court of Appeals which has issued an opinion which concludes, "Therefore, even if our supreme court were to find that Indiana’s sentencing scheme runs afoul of the Sixth Amendment for the reasons articulated in Blakely, this finding would have no effect on Carson’s sentence. Petition for rehearing denied."

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