Wednesday’s work by the Executive Branch

As if I wasn’t already hogging the faculty printer, a few hours after Ameline comes down I get six large pdfs with the SG’s filings seeking cert. in Booker and Fanfan (basics here). Helpfully, Marty Lederman at the SCOTUSBlog has this post and this post, while All Deliberate Speed has this post, discussing the way the SG is coming to the High Court with Blakely issues. In addition, here’s Thursday’s NY Times article covering the SG filing.

Though the SG’s case choices might be debated, I am now much more concerned about the way the severability question is framed. Here’s the key question the SG wants answered if the Supreme Court decides Blakely applies to the federal guidelines:

whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.

Cert. question no. 2 in both Booker and Fanfan (emphasis added).

I have highlighted part of the question because it seems to take as a given that the guidelines are readily applicable in a case in which the Guidelines would not require the court to find a sentence-enhancing fact. DOJ and the USSC and many judges, such as Judge Cassell in his decisions in Croxford and Thompson (background here), have asserted that even if the Guidelines are wholly inapplicable in cases that involve so-called “Blakely factors,” they are still wholly applicable in cases that do not involve “Blakely factors.”

However, as I have argued here, and as US District Judge Gregory A. Presnell has held in US v. King, 6:04-cr-35 (M.D. Fla. July 19, 2004) (details here), it does not seem sound to divide up the severability issue this way. I highly encourage everyone to read Judge Presnell’s opinion to see how forcefully he argues that if the guidelines are wholly inapplicable in any case, then they should be deemed wholly inapplicable in every case even if the case does not involve any “Blakely factors.”

I am concerned that the way the SG has framed the severability question in the cert. petitions (due to the language in bold noted above) might prevent the High Court from answering all aspects of the severability question. But perhaps those familiar with Supreme Court practice can tell me not to worry because the Court can ultimately do whatever it wants. Marty Lederman’s updated post here gives me some comfort.