Strange 10th Circuit holding

To date, I believe that the Tenth Circuit has not formally ruled on Blakely‘s applicability to the federal guidelines. But an opaque recent decision from a Tenth Circuit panel seems to suggest that Blakely has not altered the application of the federal sentencing guidelines at all.

In United States v. Sharbutt, 2005 U.S. App. LEXIS 122 (10th Cir. Jan. 5, 2005), the court repeatedly cites and quotes post-Apprendi, pre-Blakely cases in support of the proposition that the Sixth Amendment “does not apply to sentencing factors that increase a defendant’s guideline range but do not increase the statutory maximum.”  But, of course, Blakely is so consequential because it seems to change this understanding of Apprendi‘s reach. And, confusing matters in Sharbutt, the court also makes reference to the Apprendi/Blakely exception for “prior convictions,” although it seems the defendant in Sharbutt is objecting to judicial fact-finding relating to his possessing a firearm in connection with drug distribution.

Because the Sharbutt ruling is unpublished, only the defendant and his lawyer will have to figure it out.  But the case is further evidence that, even six months after Blakely, applications of the decision can be quite confused.