Blakely never sleeps…except perhaps in the Second Circuit

Because it seems Blakely never takes a day off, I am fortunate to have access to a high-speed internet connection and a healthy printer tonight before heading to the beach tomorrow afternoon. Though Ron, as I expected, is already driving the blog beautifully, I am eager to post some commentary later about today’s very interesting Minnesota report and the O’Daniel decision by Judge Holmes.

But, while Blakely and this blog keep putting the pedal to the medal, today the Second Circuit entered this order apparently designed to put the brakes on Blakely in that circuit. Here’s the full text:

John M. Walker, Jr., Chief Judge of the United States Court of Appeals for the Second Circuit, today announced a set of procedural and administrative measures that his court is adopting pending the Supreme Court’s decision in US v. Booker, No. 04-104, and US v. Fanfan, No. 04-105 (to be argued October 4, 2004). These measures are as follows:

(1) The court generally will hold mandates in all criminal cases pending the Supreme Court’s decision in Booker/Fanfan. A panel may order that a mandate issue, however, in cases in which (a) the defendant was sentenced to no more than the applicable statutory minimum and (b) the facts that justified application of the statutory minimum were either admitted by the defendant or found by a jury beyond a reasonable doubt. Should any party believe there is a need for the district court to exercise jurisdiction prior to the Supreme Court’s decision, it may file a motion seeking issuance of the mandate in whole or in part.

(2) All motions to file supplemental briefs in light of the Supreme Court’s decision in Blakely v. Washington, 124 S. Ct. 2531 (2004), will be denied without prejudice to renewal following the Supreme Court’s decision in Booker/Fanfan.

(3) Although any petition for rehearing should be filed in the normal course pursuant to Rule 40 of the Federal Rules of Appellate Procedure, the court will not reconsider those portions of its decisions that address defendants’ sentences until after the Supreme Court’s decision in Booker/Fanfan. In that regard, the parties will have until 14 days following the Supreme Court’s decision to file supplemental petitions for rehearing in light of Booker/Fanfan.
This order — though not as dramatic or as consequential as the recent California appellate court order refusing to compensate appointed counsel for research or briefing of Blakely issues (details here) or the Indiana US Attorney’s decision to seek a stay of all sentencing hearings (details here) — is just another example of a lower court’s effort to cope with a period of unprecedented legal uncertainty while we all await further guidance about the meaning of Blakely .