More stunning post-Booker work from a district court
As I noted in this post after reading Judge Cassell in Wilson (basics here, commentary here and here), the new federal sentencing structure will be really built from the ground up, opinion by opinion. And today I am pleased to be able to share (downloadable below) the contribution of ND Okla Chief Judge Sven Erik Holmes, who has entered an order in US v. Barkley, 04-CR-119-H (ND Ok. Jan. 24, 2005), addressing his view of sentencing post-Booker.
Chief Judge Holmes, as some may recall, did important pathbreaking work post-Blakely in US v. O’Daniel (details here and commentary here). And we get more of the same in Barkley, as Chief Judge Holmes concludes, in answer to a question I raised in this post, that “pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in Blakely…. [And] law, policy, and common sense dictate that this Court should exercise its discretion by strictly applying in all cases the Guidelines, modified to satisfy Blakely.“
In other words, Chief Judge Holmes has decided in a remarkable opinion in Barkley that the discretion afforded by Justice Breyer’s remedial opinion for the majority in Booker allows him to adopt the remedy proposed by Justices Stevens and Scalia in their remedial dissents! I will need a lot of time to take in this opinion, but I especially want to highlight that Chief Judge Holmes supports his ruling by suggesting that “when Congress undertakes to develop a new sentencing system in accordance with Blakely, there will be a body of judicial experience to inform the development of these policies.”
Lots of commentary soon to follow on this fascinating and important ruling. For now, let me just quote in full the Barkley opinion’s introductory passage:
[T]he Court finds as follows: (i) under Booker, the Sixth Amendment rights set forth in Blakely apply to the Guidelines; (ii) pursuant to the discretion granted in Booker, courts may constitutionally apply the Guidelines if the manner of application fully protects the Sixth Amendment rights articulated in BlakelyBlakely in the manner described more fully below; and (iv) in the instant case, the Guidelines should be applied consistent with the principles described in Blakely and Booker, and as a result sentencing Defendant under the Guidelines here will be constitutional.