The thrill ride continues (and Judge Cassell speaks again)!

I‘ve just gotten word of two more major Blakely opinions, both from Utah and one from Judge Cassell of Croxford fame. First, in US v. Montgomery, we have US District Judge Ted Stewart astutely finding “significant that the Supreme Court refrained from the opportunity to strike the state statute [in Blakely] under its Sixth Amendment analysis but, instead, only found the upward departure based upon judicial fact-finding unconstitutional.” He thus concludes that the “federal sentencing guidelines, themselves, do not run afoul of the Sixth Amendment. The problem lies in upward enhancements and departures, and their accompanying lack of a citizen jury ‘check,’ and the lack of application of the otherwise-required heightened standard of proof (beyond a reasonable doubt) that would be required in that setting.” He then rejects the remedy of disregarding the guidelines altogether, and decides “this Court will … continue to apply the sentencing guidelines, but without additional fact-finding by the Court that might result in an upward enhancement or departure that would result in a sentence above that which would otherwise apply under the guidelines, absent those findings.”

Meanwhile, in US v. Thompson, US District Judge Paul Cassell rejects an interesting claim by the defendant that because the federal guidelines are unconstitutional in one case then they are inapplicable in all cases. Reiterating the limits in his own Croxford ruling, Judge Cassell explains that in the case at hand “there is no need for judicial factfinding beyond the facts necessarily contained in the indictment.”

Both cases look very rich, and I hope to provide more commentary on them this afternoon.