Read all about it… (especially severability)

I have just finished Judge Nancy Gertner’s opinion in Meuffleman, and it is by far the most comprehensive judicial treatment of federal sentencing issues in the wake of Blakely that I have seen. (Indeed, one very knowledgeable observer has already called it in an e-mail to me “the best of the batch so far.”) The decision is so very rich factually — e.g., consider Judge Gertner’s report that she alone has 30(!) “in the pipeline” cases now on her docket (n.2) and her recounting of the factual dispute in the sentencing of defendant Michael Notkin (pp. 12-13). But the legal analysis take this opinion to another level, with even many footnotes doing important and groundbreaking work (see especially notes 1, 9, 20 and all of 35-38).

Though there are many points Judge Gertner makes that are worthy of discussion, I want here to highlight her severability analysis (pp. 25-38), and particularly her conclusion that “the Government advances a selective severability argument … [that] makes no sense.” Slip op. at p. 35. Agreeing with the position of Judge Presnell in US v. King (background here), Judge Gertner suggests (though does not quite expressly hold) that her non-severability conclusion means the guidelines must be inapplicable in all cases:

If all of the Guidelines — not just those about enhancements, but even those setting base offense levels — were drafted with judges in mind and further, if the system were intended to cohere as a single regime, how can there be a two-tiered system — one Guideline-based, one indeterminate?