More big Blakely news from the south

News must move slowly from south to north, because only this weekend did I get details on a ruling apparently made Wednesday by U.S. District Judge Walter S. Smith Jr. of the Western District of Texas in US v. Rucker. According to a news report forwarded to me, Judge Smith “held that federal sentencing guidelines are not constitutional, adding that sentence enhancements as applied under the guidelines violate a defendant’s Sixth Amendment right to a jury trial.” And, according to this news report, Smith issued three sentences in Rucker: one for each contingency if “the Blakely case does not apply to federal sentences, as Assistant U.S. Attorney Jake Snyder argued Wednesday; if Blakely does apply and the sentencing guidelines ultimately are held to be constitutional; and if the sentencing guidelines are ruled unconstitutional by higher courts.”

Apparently in the Rucker case, the “relevant conduct” introduced at sentencing bumped Rucker’s offense level on the guidelines from 9 to 30. Under his “triple sentence format,” according to this news story, “Smith sentenced Rucker to 88 months if Blakely does not apply to federal guidelines; 10 months if it does apply and the guidelines are found to be constitutional; and to seven years in prison using Smith’s discretion if the guidelines are ruled to be unconstitutional.” The word is that Judge Smith expects to issue a written ruling early this coming week.

In other news from Texas, this article discusses the efforts by U.S. District Judge W. Royal Furgeson to deal with Blakely in a case involving a store owner who committed thousands of dollars in mail fraud. According to the article, Judge Furgeson apparently announced he wanted to put “aggravating factors mentioned in the defendant’s pre-sentence report — including allegations he obstructed justice — to a jury. The judge also offered an alternative: ‘To resolve this, you give me a waiver (of jury trial), and we’ll proceed.'” The article also notes that San Antonio’s three other federal judges said they would issue dual sentences — one under the federal guidelines and a backup not incorporating them — in the event the guidelines are thrown out.

In other news from southern states, here’s a link to a thoughtful news story about the efforts being made in the Louisiana federal courts to deal with Blakely. It reports that U.S. District Judge Frank Polozola is issuing dual sentences, but in a drug sentencing he simply imposed the same sentence of “10 months in prison — not just once, but twice.”