District judges keep up the good work

Perhaps if your surname is Holmes and you are a judge you have no choice but to perform at a high level. Whatever the explanation, Chief Judge Sven Erik Holmes of the Northern District of Oklahoma continues his impressive Blakely work through a recently entered order in US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004), which can be downloaded here:
Download us_v. Leach.pdf

The order in Leach contains all of the impressive and thoughtful reasoning set forth in Judge Holmes’ decision last week in US v. O’Daniel (details here and commentary here). But Leach is a distinct and important read in part because the case involves an embezzlement offense with interesting sentencing issues relating to the scope of the crime and amount of loss. In Leach, Judge Holmes reiterates his view, based on his reading of Blakely and waiver analysis, that he can constitutionally still serve as a sentencing factfinder, but must do so using a higher evidentiary standard and with the rules of evidence in force. In other words, Judge Holmes has devised an interesting (and I think jurisprudentially sound) way to “split the Blakely baby.”

As indicated at the end of the opinion, the defendant in Leach was ultimately unhappy with the outcome of Judge Holmes’ Blakely baby splitting; the defendant has already announced her intention to appeal to the Tenth Circuit.