FSG found unconstitutional on both coasts of Pennsylvania
I have now in hand copies of two interesting Blakely cases from two different district courts on opposite sides of Pennsylvania. In US v. Harris, US District Judge Arthur J. Schwab of the Western District of PA explains that federal sentencing guidelines “might not be a pure ‘statute,’ but they surely are statutory and legislative, and the Blakely decision renders them unconstitutional.” He goes on to explain:
And because the relevant conduct and enhancement provisions of the federal guidelines are an integral part of a multi-faceted, interrelated mechanism, it is not possible to declare some parts unconstitutional but spare the remainder of the guidelines, leaving intact an incomplete and unintended skeleton. Thus this Court finds that the federal sentencing guidelines are an unseverable and unconstitutional whole. Essentially, then, we are left with the pre-guidelines sentencing scheme, pursuant to which defendants will be sentenced in this Court unless and until Congress, the United States Supreme Court or the United States Court of Appeals for the Third Circuit informs us otherwise.
And yet, as Judge Schwab further explains:
The Court intended to have the parties brief [whether a prior] plea agreement could be enforced or implemented in whole or in part, and what to do if it could not. However, following the announcement of this Blakely ruling in open court, the government and defense counsel, and more importantly, defendant, chose to waive any Blakely rights and proceed to sentencing under the plea agreement and the sentencing guidelines…. Thus, although this Court has declared the United States Sentencing Guidelines unconstitutional under Blakely, the sentence in this case ultimately was crafted under the guidelines, by agreement of the parties.
Meanwhile, in US v. Leach, US District Judge Stewart Dalzell of the Eastern District of PA explains that his conclusion (previous noted here) that
Under the teaching of Blakely and Booker, we therefore will make no enhancement to Leach’s sentence that he has not, by his admission, already agreed to. Because there is, as the United States Department of Justice and Judge Posner recognize, the possibility that the Guidelines do not admit to an easy severability under Blakely, we shall also announce a nonguidelines alternative sentence.
After some interesting permitted and disallowed guideline calculations, Judge Dalzell arrives at sentencing range of 188-235 months and imposes the same 188 month term both as a guidelines and nonguidelines sentence.
Download USvLeach.pdf