Tuesday, August 10, 2004

Morning Roundup

Today is a slow news day, so I’m going to do a little blog house keeping.

Some Poll Results and a Bold Prediction

The most recent poll question posted on this site asked: Did the Supreme Court make a mistake by certifying the SG's two questions without any modification?

The results were rather one sided: 75% (36 total) voted that the Court had made a mistake and 25% (12 total) votes that the Court did not make a mistake.

Perhaps those that voted, or even those that didn’t, could use the comments to explain why they think the Court did or did not make a mistake.

With the end of every poll comes a new poll. The poll is located on the right-hand sidebar, below the counter and the Archives section. The new question (which I should save for later but I bet it will make a comeback) asks:

In US v. Booker and US v. Fanfan, the Supreme Court will:

- Vote to uphold the guidelines by a thin margin (1-2 votes)
- Vote to uphold the guidelines by a wide margin (3 votes or more)
- Vote to strike down the guidelines by a thin margin (1-2 votes)
- Vote to strike down the guidelines by a wide margin (3 votes or more)
- Other

Admittedly, the answers are a little imprecise, but given my space limitations you can take “strike down the guidelines” to mean a more modest “rule that judicial fact finding, on a preponderance of the evidence standard, which enhances a defendant’s sentence is unconstitutional under Blakely when a jury has not found those facts beyond a reasonable doubt or the defendant has not admitted them.” Just want to be clear, but you know what I meant.

Before you rush off to cast your vote, I’d like to share a conversation I had with an associate at a Washington DC law firm regarding the likely outcome of the Booker/Fanfan cases. The associate, who clerked on the Supreme Court, predicted that the Court would vote to uphold the guidelines by a 5-4 margin. That's a bold prediction, but even more bold was the associate's prediction that the swing vote would be Justice Scalia. I think the associate's words were something along the lines of, "This will line up just like US v. Harris."

Some not-so significant, but maybe important later, case news

By Blakely standards, United States v. Mortimer, 2004 U.S. Dist. LEXIS 15015 (Cr. No. 03-14 Erie) (D. Pa., July 28, 2004) is old news. And on top of that, it’s not one of those sexy Blakely opinions which we’ve been treated to for the last several weeks. But you may want to keep you eye on what the Court of Appeals for the Third Circuit does with this case.

Some facts - Mortimer pled guilty to unlawfully manufacturing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C).

The base offense level as reported in the presentence report was determined to be 28, based on the finding that Mr. Mortimer possessed a total of 66 grams of pseudoephedrine. Mortimer’s plea, however, did not stipulate to a specific drug quantity. Mortimer, who has an appeal pending in the Third Circuit, filed a post-sentence objection to the PSR with the district court.

Mortimer contends that his base level offense should be 12, the level applicable to possession of a detectible amount of pseudoephedrine.

Because his appeal is pending, Judge Maurice B. Cohill, Jr. refused to certify Mortimer's objection to the presentence report base level and re-sentence him.

We’ll see what happens.

An Interesting Proposal

Sentencing Law and Policy has posted a proposal from Larry Kupers for revising the sentencing guidelines. Get the proposal, and more background here.

My Mistake

Finally, let me issue a mea culpa to Howard Kieffer of BOPWatch (among other organizations and affiliations) for not crediting him appropriately in my post for raising the possibility of an O’Connor recusal (accessible here). I wasn’t sure whether Howard wanted his name associated with the post and my default position is to not use an emailer’s name. My apologies.

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