Sunday, September 26, 2004

Has the 3rd Circuit also joined the waiting game?

A few days ago, in a post entitled Waiting Game, I discussed two opinions from the 7th and 9th Circuit which have postponed sentencing opinions until the resolution of Booker and Fanfan. As you may know, the 7th and 9th Circuits have issued (opposing) rulings on Blakely's application to the federal guidelines. The 3rd Circuit, however, is one of a few circuits that has not issued a Blakely ruling.

Peter Goldberger has shed some light on the state of Blakely in the 3rd Circuit in the comments section of the Waiting Game post, for which I am grateful. Below, you'll find the text of his post in the comments section:

It appears that the Third Circuit is taking the same approach. I have a case, argued back on May 27, which presents the question whether an upward *departure* violates Apprendi as applied in Ring and Blakely, because 18 USC 3553(b) does not permit a sentence above the top of the guideline range unless "the court finds" additional facts to warrant a departure. (There are also contested Chapter 2 and Chapter 3 *adjustments* at issue.) The parties filed supplemental memos on this in July. On Sept. 17 we received an order from the merits panel that the case is being held under advisement pending the decision in Booker/Fanfan. I have sent the exact info and wording to Jason, in case he cares to post it.-- Peter Goldberger, Ardmore, PA

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