July 21, 2004

Law - Downward departures and Blakely

The ruling by a 7th Circuit panel today in USA v. Keller (see entry immediately below) deals with a downward departure in sentencing. The panel reversed "the district court’s grant of a downward departure pursuant to U.S.S.G. § 5K2.12." No mention was made of either Blakely or the 7th Circuit's own recent decision in Booker.

Recall that the Judge Presnell of the MD Florida stated yesterday in the introduction to US v. King: "The Government contends that Blakely does not impact these sentences because it does not seek any sentencing enhancements. For the reasons stated below, however, Blakely does impact these sentences, as well as every other sentence this Court will hand down hereinafter."

But see this footnote 17 (p. 31) from a 2-1 ruling just issued today by the 9th Circuit (US v. Ameline):

As Blakely only concerned the burden of proof required to enhance a sentence, we do not address its application to downward departures. As Ameline’s Blakely rights were not implicated by the district court’s grant of a three level downward departure for acceptance of responsibility, upon remand, the district court retains discretion to depart downward.
[Late afternnon update] After looking at the just-posted materials re the Solicitor General's petition to the Supreme Court in Booker and Fanfar, I can see that the underlying question, answered differently in each of the three cases cited above, is that of severability in the event the Court acts to invalidate the Guidelines. [See this post from SCOTUSblog.]

Posted by Marcia Oddi at July 21, 2004 01:40 PM