What the….? (aka The 9th Circuit mumbles)

Late yesterday I noticed this Ninth Circuit “Order of Remand” in US v. Epis, which cites Blakely. Here’s the full text of the order:

This cause came on for hearing before the court on June 16, 2004. The Supreme Court of the United States has now granted certiorari in Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003), cert. granted (U.S. June 28, 2004) (No. 03-1454), which is a related case dealing with the growing and use of marijuana for medicinal purposes. This court now remands this case to the district court for reconsideration of the judgment following the decision by the Supreme Court in Raich. If, after considering any application of Raich to this case, the district court determines that Epis’s conviction should remain in tact, the district court should then proceed to re-sentence Epis in a manner consistent with the Supreme Court’s decision in Blakely v. Washington, 542 U.S. ___ (2004) 2004 WL 1402697 (June 24, 2004). The panel of this court retains jurisdiction pending reconsideration by the district court.

I did not post this decision because I came to the conclusion that this was just one of a number of cases I’ve seen (especially from state courts) remanding for reconsideration in light of Blakely. See, e.g., State v. Beaulieu, 2004 Minn. App. LEXIS 774 (July 6, 2004). However, a reader from the Ninth Circuit wrote in to say this opinion shows that “The Ninth Circuit appears to have weighed in, albeit somewhat cryptically, on Blakely on the same side as the Seventh Circuit.” When I wrote back to say that I was reading this text narrowly as not weighing in on the merits, the reader responded:

“You are not alone in that [reading], since it [remanded] without any reasoning or explanation. But given the stare decicis rule in this circuit, it is hard to assume that since it is a published decision and it clearly directs the district court to apply Blakely in sentencing it does not have the same effect on all sentencing decisions in the circuit until overruled by either the court en banc or the Supreme Court. On the other hand, who can make much sense out of the whole Blakely morass?”

Can the smart folks out there with your Federal Courts books open help us figure this one out??

UPDATE: In the comments, the view seems to be that this is not a ruling on the merits or of any defined consequence. It also appears that a more definitive discussion of Blakely should be coming from the Ninth Circuit soon.