Wednesday’s work by the Judicial Branch

After a seemingly calm Blakely morning, the afternoon started its shift into warp speed with news that the Ninth Circuit had a major Blakley ruling in US v. Ameline (basic details here). The Ameline ruling is major first and foremost because it represents the third appeals court — after the Seventh in Booker and the Sixth in Montgomery (though that panel decision has since been vacated) — to declare aspects of the federal sentencing guidelines unconstitutional due to Blakely.

Though third in time, Ameline is by far the biggest circuit ruling to date because it addresses (though sometimes obliquely) so many more issues than any of the other circuit rulings. This post over at All Deliberate Speed provides highlights of ground covered in Ameline, and this article from law.com is also very informative.

Most critically, the decision speaks directly and thoughtfully to the severability issue — rather than punting as was done in Booker. The Ameline court draws on canons of construction and congressional intent to conclude the guidelines are severable. See, e.g., slip op. at p. 33 (“the government has failed to overcome the presumption in favor of severability”). I am not sure the court really loved this conclusion, but it was clearly chary about declaring the whole guideline structure unconstitutional. See, e.g., slip op. at p. 30 (“We are reluctant to establish by judicial fiat an indeterminate sentencing scheme.”).

Interestingly, though my own impression is that district courts to date have been fairly evenly split on the severability question, the Ninth Circuit implies in footnote 2 that it is adopting the majority rule. Indeed, on Wednesday, I received three new district court opinions declaring the guidelines unconstitutional, two of which found the guidelines not severable, Compare US v. Marrerro, 04 Cr. 0086 (S.D.N.Y. July 21, 2004) (Rakoff, J.) (not severable) and US v. Sweitzer, Cr-03-087-01 (M.D. Pa. July 19, 2004) (Rambo, J.) (same), with US v. Lynch, 03-CR-137-K (N.D. Ok. July 2004) (Kern, J.) (severable).

There is a lot more which can and should be said about Ameline, but I’ve got two other branches to get to tonight. Nevertheless, I see two additional big elements in the decision: (1) the court expressly sanctions the use of a sentencing jury to find aggaravating sentencing facts (see slip op. at 34; see also background here), and (2) the court implicitly holds that a defendant can waive his right to a jury, but cannot “waive down” the burden of proof from beyond a reasonable doubt to preponderance (see slip op. at 34 n.19).