Sunday, October 03, 2004

Some observations with only a few hours to go

I’m now in Washington DC, anxiously awaiting oral argument tomorrow at the US Supreme Court. Appropriately, I’m staying at Jurys in the heart of Dupont Circle.

I’ve been thinking about some of the many lines of questioning that could pop up tomorrow. With two hours scheduled for oral argument, the Court should be able cover a lot of ground.

The two advocates for the respondent will likely face some similar questioning, but Booker and Fanfan each raise their own set of issues. Here’s a quick look at some key differences.

Booker v. Fanfan

Booker’s case is unique, or at least different from Fanfan, in four respects. First, Booker was sentenced before Blakely was decided. Second, Booker’s criminal history score placed him in category VI. Third, Booker was sentenced under 21 USC 821(b)(1)(A), which carries a “statutory” (whatever that means) maximum of life in prison. Because of his criminal history score, Booker faces a 20 year mandatory minimum under the statute. He was sentenced to 360 months in prison based on a judicial finding of 658.5 grams of cocaine base. The jury’s finding was that Booker was responsible for at least 50 grams. Fourth, Booker’s sentence was enhanced for perjuring himself at trial.

Fanfan is distinction from Booker in at least four ways. First, Fanfan’s case raises some relevant conduct issues because Fanfan’s sentence included an enhancement for an attempt to distribute cocaine base, even though the jury only found him guilty of possession with an intent to distribute at least 500 grams of cocaine. Fanfan was sentenced under 21 USC 841(b)(1)(B), which carries a 40 year maximum sentence and a 5 year mandatiry minimum. Second, Fanfan was sentenced after Blakely was decided. Fanfan’s case comes to the Court directly from the trail court, whereas Booker’s case comes from the 7th Circuit Court of Appeals. Third, Fanfan’s criminal history score places him at category I. Finally, Fanfan’s sentence was enhanced for his leadership role in the offense.

Lines of Questioning

The following are some potential topics, or lines of questioning, that the Court may pursue tomorrow. I’ve tried to brainstorm major topics, as well as some semi-obscure ones, leaving out the obvious topics.

- Sentencing juries. Do judges have the authority to convene sentencing juries absent a statutory grant of authority?

- Plea Bargains. Will the Court pickup its vigorous debate over plea bargaining which took place in the Blakely opinion?

- Statistics. What role will sentencing statistics play, if any, in the oral argument?

- A sentencing paradox. If the guidelines are struck down in their entirety, judges will be permitted (until Congress acts, at least) to consider the same factors which they were prohibited from considering under Blakely. How can this paradox be explained in a way that is consistent with the Sixth Amendment?

- Distinguishing Edwards and a few other cases. The respondents will surely be called upon to distinguish several cases from the last 12 years that the government says are inconsistent with the respondent’s position.

- The Sentencing Commission. How much of the government’s brief is a fanciful depiction of the role and function of the Commission? Will the Court press the government on the erosion of the Commission’s independence?

- Harris v. US. Is it still good law? How are facts found by a judge that lead to a mandatory minimum different from facts which simply increase a defendant’s sentence?

- Retroactivity. Is Blakely retroactive?

- Waiver. Does a simple admission by a defendant constitute a waiver of Blakely rights?

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