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When will Booker and Fanfan be decided?

August 20, 2004

With the Acting Solicitor General describing the state of federal sentencing in dire terms (background here) and with so many federal courts and cases awaiting a ruling, I have to think the pressure on the Supreme Court to decide Booker and Fanfan very quickly will be considerable.

After all, a number of circuit and district courts have decided not to directly grapple with the implications of Blakely until the High Court acts (example here), at least one US Attorney has filed a district wide motion to “Stay All Scheduled Sentencing Hearings Pending Resolution By the United States Supreme Court on the Application of Blakely to the Sentencing Guidelines” (details here), and now we have magistrates freezing prisoner Blakely claims until the Supreme Court starts sorting out these matters (article here).

Yet, as I noted here, “to really bring more order to our changed sentencing world, the next Blakely case would have to address an enormous number of complicated and important questions.” Moreover, the Justices are obviously deeply split on all these complicated and important questions. And, though the Fourth and the Sixth Circuits feel comfortable issuing consequential orders with opinions to follow (details here), I think the Supreme Court will appreciate the need for a written opinion to accompany its holdings.

So, adding all this up, when will Booker and Fanfan be decided? I am predicting after Halloween, but before Thanksgiving (although, depending on what the opinion says, the day the decision comes down may feel like Halloween or like Thanksgiving for many). Anyone else willing to make guesses in the comments about when Booker and Fanfan will be handed down?