Do federal sentencing judges have discretion to Blakely-ize?
Perhaps throwing an interesting curve into the developing debate over how to interpret and apply Booker, I have been hearing buzz about some federal district judges indicating that, following the holding of the Booker merits majority, they believe they should rely only on facts found by a jury or admitted by the defendant when calculating (now advisory) guideline ranges.
I am fairly certain that the holding of the Booker remedial majority does not require compliance with Blakely when calculating (now advisory) guideline ranges. But it is a distinct, and quite interesting, question whether district judges in exercising their post-Booker discretion are permitted to demand that all sentence-enhancing facts be found by a jury or admitted by the defendant.
Arguably, this issue might be thought to dovetail with the debate over how much weight to give to the (now advisory) sentencing guidelines. A judge inclined, like Judge Cassell in Wilson, to treat the guidelines as nearly mandatory might sensibly decide he or she should only rely on those facts found by a jury or admitted by the defendant; a judge inclined, like Judge Adelman in Ranum, to treat the guidelines as more advisory might sensibly decide he or she can and should more readily rely on facts not found by a jury or admitted by the defendant.