Wednesday, September 15, 2004

Cases and News

In the Maine

There are two stories from Maine today.

"You are very, very lucky." Those are the words of district judge John Woodcock to a man who was sentenced for trying to buy OxyContin in the parking lot of a Bangor restaurant. As a result of a timely plea and a timely Supreme Court decision, the defendant's sentence was reduced by one year. The full story can be accessed here.

Judge Hornby, who presided over Duncan Fanfan's sentencing, issued and opinion in US v. Brown, 2004 U.S. Dist. LEXIS 18247(No. 04-31-P-H)(D. Me., Sept. 10, 2004) which denies a defendant's claims that a superceded indictment should be thrown out. Here's a snippet:

In this case, the grand jury returned its initial indictment before the Supreme Court decided Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), and before this District held that Blakely applies to federal sentencing guidelines, see United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004); United States v. Zompa, 326 F. Supp.2d 176 (D. Me. 2004). As a result of those decisions, only facts stipulated by the defendant or found by a jury beyond a reasonable doubt n1 can support federal sentencing enhancements. Subsequently, the grand jury returned a Superseding Indictment that varied from the original indictment by adding allegations that, if found by a jury beyond a reasonable doubt, would support Guideline sentencing enhancements. The defendant moves to dismiss the Superseding Indictment on two grounds: first, that it is barred by the Speedy Trial Act because it issued more than thirty days after he was arraigned on the initial indictment; and second, because the prosecutor allegedly misled him into delaying his guilty plea so that she would have time to get the Grand Jury to issue the Superseding Indictment. The motion is DENIED.

From the 7th Circuit

In US v. Pree, 2004 U.S. App. LEXIS 19252, 4-48 (No. 03-1516 )(7th Cir., Sept. 14, 2004) , the Seventh Circuit has taken it upon itself to raise a Blakely problem in a case where the lawyers failed to raise the issue. Here's what they had to say:

D. Sentencing Enhancement

As a final matter, we address an issue not raised by the parties--the constitutionality of the sentencing enhancement Ms. Pree received for obstruction of justice. Ms. Pree's case was briefed and argued prior to the Supreme Court's decision in Blakely v. Washington, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004). Following the Court's decision in Blakely, this court held in United States v. Booker, 004 WL 1535858 (7th Cir. July 9, 2004), cert. granted, 73 U.S.L.W. 3073, 73 U.S.L.W. 3074 (U.S. Aug. 2, 2004) (No. 04-104), that enhancements imposed by the court without [*47] a jury finding violate the Sixth Amendment.

Ms. Pree does not address to this court, nor can we find evidence in the record to indicate, that she addressed before the district court the constitutionality of her sentencing enhancement. In light of the sea change in federal sentencing law wrought by Blakely and Booker, we think it appropriate to take note of the possibility of an unconstitutional sentencing enhancement. See United States v. Seacott, 15 F.3d 1380, 1383 (7th Cir. 1994). Given the precedent in this circuit prior to Blakely, we think it would be unfair to characterize Ms. Pree as having waived a challenge to the validity of her sentencing enhancement.

The Supreme Court has granted certiorari in Booker and will consider, in the very near future, the application of Blakely to the United States Sentencing Guidelines and therefore the correctness of this court's decision in Booker. We therefore shall stay our mandate in this case until the Supreme Court has rendered its decision in Booker. Within fourteen days of the Supreme Court's decision in Booker, each party may submit a memorandum presenting its views on the application of that decision to this case. n17


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