Heartland of Confusion
Judges Bright and Lay in their Mooney decision — which, despite its peculiar sequence of opinions is now binding law for seven states — assert that the “district courts in this Circuit have an urgent need for clarification.” That is so very true, but I am not sure that the decision in Mooney really clarifies more than it confuses.
First, the Eighth Circuit expressly adopts Judge Cassell’s severability analysis in Croxford and thus “direct[s] the district court to follow Judge Cassell’s procedure of treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence.” Slip op. at pp. 23-24 (emphasis in original). Seems simple enough, but this ruling leads to two big initial questions:
1. What in the world does it mean for a defendant to “consent to a Guidelines sentence”? Is that the same as waiving rights under the Sixth Amendment? Can this be done in a plea argeement? Can the defendant ask the judge first to state what the judge would impose with the guidelines only advisory and then decide if he “consents to a Guidelines sentence”? As noted before, a world in which the guidelines no longer bind judges could, in a particular case, actually be worse for a defendant (see background here noting a case in which a judge imposed a harsher sentence than permitted under the guideliens following a ruling that the federal guidelines are unconstitutional). But a defendant would not know which world is better until he gets at least some inkling of the likely ruling in an advisory world.
2. As I have argued here and discussed here, and as US District Judge Gregory A. Presnell has held in US v. King, 6:04-cr-35 (M.D. Fla. July 19, 2004) (details here), if severability analysis leads to the conclusion that the guidelines are wholly inapplicable in one case, then the same analysis suggests that the guidelines be deemed wholly inapplicable in every case (including those that do not involve any “Blakely factors”). By adopting Croxford, does the Eighth Circuit mean to reject that position and hold that the guidlines are advisory only in cases with Blakely factors, but still fully binding in cases without Blakely factors?