Spanning the Circuits

With big circuit news on the horizon — e.g., we still await written opinions from the Fourth Circuit in Hammoud and I believe the Sixth Circuit has an en banc Blakely case scheduled for hearings today — smaller news emerges daily as the circuits cope with a range of post-Blakely litigation realities.

For example, yesterday the First Circuit issued an extremely long opinion in US v. Cianci, 2004 U.S. App. LEXIS 16421 (1st Cir. Aug. 10, 2004), affirming the convictions of the former mayor of Providence and some associates on public corruption charges. At the end of the opinion, the First Circuit panel explains in this way how sentencing issues will be handled:

In light of the Supreme Court’s recent decision in Blakely v. Washington, 124 S. Ct. 2531 (June 24, 2004), we do not decide the sentencing appeals raised by all defendants as well as challenges by defendants and the government to the district court’s forfeiture order. By separate order, we have requested additional briefing and oral argument on these issues.

In something of a contrast, yesterday the Eleventh Circuit in US v. Curtis, No. 02-16224 (11th Cir. Aug. 10, 2004), continued its (questionable) efforts to keep certain defendants from being able to raise Blakely claims. As Howard Bashman first reported here, in Curtis the Eleventh Circuit rejects a defendant’s request to file post-oral argument, pre-decision supplemental brief raising Blakely issues. As Howard astutely notes: the Curtis “order demonstrates [that] the Eleventh Circuit is strictly enforcing the waiver rules that normally apply in appellate litigation. Some other circuits, in contrast, appear to be taking a more lenient approach.”

The Curtis decision is noteworthy (and troubling) not only for expanding the Eleventh Circuit’s restrictions on who can now raise Blakely claims (details here), but also because tucked into footnote 2 are important (and contestable) conclusions about plain error analysis in light of Blakely. Specifically, the Eleventh Circuit says, “as an alternative basis for our decision, we conclude that Curtis has failed to demonstrate plain error,” and in support of this conclusion the court asserts that “we discern no miscarriage of justice in the case, nor do we believe this case presents a situation that seriously affects the fairness, integrity or public reputation of judicial proceedings.” Though I do not know if the case’s facts support or refute this conclusion, but I cannot help but wonder how can the Eleventh Circuit be confident there is no miscarriage of justice without even allowing Curtis to brief this issue.

Relatedly, a defense attorney reports from the Ninth Circuit that the court is issuing orders in some previously decided cases (which are not yet officially “final”) which essentially postpones final determination of sentencing issues “pending resolution of the effect of Blakely v. Washington on the United States Sentencing Guidelines.” But, as this attorney insightfully notes, “I thought that the Ninth Circuit has already decided that issue in Ameline. I guess everything is on hold in the Ninth Circuit until the Supreme Court issues its decision.”

Finally, the Tenth Circuit yesterday issued an opinion in US v. Wooten, 2004 U.S. App. LEXIS 16449 (10th Cir. Aug. 10, 2004), with a questionable Blakely ruling concerning a restitution order, but this issue merits its own distinct post.