A Dr. Seuss morning

In the grand tradition of Dr. Suess and his One Fish, Two Fish, Red Fish, Blue Fish, I present here Good News, Bad News, Cool News, Rad News:

Good News: My luggage was found, so I have clothes to wear at this HLS event this morning.

Bad News: As of this writing, the US Sentencing Guidelines look sounder than the US Ryder Cup team, which is already behind in 3 of 4 morning matches.

Cool News: Esteemed federal sentencing practitioner James E. Felman of the firm Kynes, Markman & Felman has sent me a copy of a thoughtful memo he sent to the US Sentencing Commission to address “possible legislative responses” if the “Supreme Court in Booker and Fanfan holds that the guideline maximum is the relevant statutory maximum for Sixth Amendment purposes.” You can download the document here:
Download felman_blakely_proposal.rtf

Rad News: I received yesterday a copy of a motion authored by Judge John Martin on behalf of the ad hoc group of former federal judges asking the Supreme Court for ten minutes of argument time in Booker and Fanfan. The motion asserts that “the voice of those who have actual experience applying the Guidelines should be heard at oral argument.”

The motion states that Judge Martin can make an argument the SG cannot; that is, that Koon v. US gives district judges broad departure power under the federal guidelines. Recall that the ad hoc judges argue in their amicus brief (available here) that this claimed discretion distinguishes the federal guidelines from Washington’s sentencing scheme struck down in Blakely. (This is, of course, a tough argument given that the sentencing judge in Blakely had broad discretion when deciding to depart, and that Justice O’Connor rightly noted in her Blakely dissent that the majority “flatly rejects” the argument that it is significant that Washington’s sentencing guidelines “still allow Washington judges to exercise a substantial amount of discretion.”)

Among other realities, this motion suggests that Judge Martin is still on planet Htrae in the Bizarro world, because there is no mention of the Feeney Amendment (which legislatively overruled Koon‘s main holding), and Judge Martin is still claiming “that the federal Guidelines are analogous to an indeterminate sentencing regime because sentencing judges retain substantial discretion to depart from a Guideline sentence.”