Thursday, September 23, 2004

Waiting Game

The Ninth and Seventh Circuits has recently issued opinions where the court has deferred a Blakely issue until the Court rules on Booker and Fanfan.

The Ninth Circuit stated that "we believe it would be imprudent to decide this issue [the Blakely appeal] now." US v. Sompong Khamsomphou, 2004 U.S. App. LEXIS 18959 (Nos. 03-30341 and 03-30342 ) (9th Cir., Sept. 7, 2004) (unpublished).

The Seventh Circuit in US v. Malik, also deferred a Blakely appeal. Judge Easterbook writes:

Little could be gained by resentencing Malik immediately, while legal uncertainty prevails and there is a substantial risk that whatever approach the district court adopts would be disapproved within a few months by the Supreme Court. The district court should defer resentencing Malik until after the Supreme Court has decided Booker and then proceed as appropriate in light of that decision. VACATED AND REMANDED.

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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