The question is when, not whether

As everyone knows, the Supreme Court will have to address directly what Blakely means for the Federal Sentencing Guidelines. The interesting question is not whether they will take on the issue, but when. In the comments, attorney Conrad Seifert reports that he filed “what may be the first post-Blakely Petition at the US Supreme Court in Restrepo v. US. It was docketed on July 9. It raises the footnote 9 issue, i.e. the constitutionality of the FSG regarding enhancements. NACDL is considering an Amicus Curiae brief.”

Without knowing the facts of Restrepo I cannot make any predictions about the likelihood of a cert. grant there. But I would think the government might seek cert. in the Booker case, although I suppose it can be debated (perhaps in the comments here) which case and at what time it makes the most sense for the Supremes to get back in the mix.