The 2d Circuit Speaks (in banc)!!

Okay, just when I thought the story couldn’t get any better, we get this capper on an incredible day. The Second Circuit Court of Appeals, in US v. Penaranda has issued an opinion, in banc, concerning Blakely. How does it come down, you ask. It doesn’t — rather the Court has certified three questions to the Supreme Court of the United States!!!

That’s right everyone, it’s time to get those Federal Courts textbooks off the shelf because the Second Circuit has fired the biggest jurisprudential firework to date. I’ve not yet had a chance to consume the whole opinion, which can be downloaded here or obtained through a few clicks from this site, but its looks like another incredible chapter in this evolving story. In addition, I am very proud to say that the Second Circuit also is the first court to give me the honor of seeing this blog cited (see footnote 9).

Download 2d_circuit_penaranda.pdf

Here’s how, at the close of the opinion, the court articulates the three certified questions:

To afford the Supreme Court an opportunity to adjudicate promptly the threshold issue of whether Blakely applies to the federal Sentencing Guidelines, we therefore certify the following three questions (the first pertains to both cases pending before us, the second to Penaranda’s case, and the third to Rojas’s case):

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury’s verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the federal Sentencing Guidelines and any upward departure from that offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon which his base offense level and corresponding sentencing range will be calculated, under U.S.S.G. § 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a gun in connection with the offense, under U.S.S.G. § 2D1.1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. § 3B1.1(b)?

P.S. Those of you who might think the use of “in banc” (rather than “en banc”) is a typo need to brush up on the collective writings of my former boss, Judge Jon O. Newman.