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Federal Sentencing Guidelines: Constitutional?


— July 12, 2004

Last Friday, the Seventh Circuit said the Guidelines were unconstitutional after Blakely.

Today, the Fifth Circuit unanimously held that the Guidelines ARE constitutional, creating a circuit split.

Not to be outdone, the Second Circuit, in an en banc opinion, skirted the issue by certifying three questions to the U.S. Supreme Court:


Last Friday, the Seventh Circuit said the Guidelines were unconstitutional after Blakely.

Today, the Fifth Circuit unanimously held that the Guidelines ARE constitutional, creating a circuit split.

Not to be outdone, the Second Circuit, in an en banc opinion, skirted the issue by certifying three questions to the U.S. Supreme Court:

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury�s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. � 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. � 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. � 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. � 3B1.1(b)?

Meanwhile, American Bar Assocation President Dennis Archer has sent this letter to Senators Hatch and Leahy, which aparently responds to a letter from the Senators asking for the ABA’s views on Blakely.

You can read all about the latest developments over at Sentencing Law and Policy. (Specifically: on the 2nd Circuit here; on the Fifth Cicuit here; and on the ABA letter here.)

UPDATE: There’s lots more news and analysis regarding these developments at the Blakely Blog, SCOTUSblog, and TalkLeft.

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