Bottom’s up in Cunningham
The bottom-side SCOTUS briefs in Cunningham, the California Blakely case, were due earlier this week, and I have a copy of the filing from the state of California as respondent. (The top-side briefs are available here.) The California brief, which can be downloaded below, confirms that the case will be as much about reasonableness review and the federal system after Booker as about the California system after Blakely. Consider this passage from the brief’s argument summary:
The constitutionality of the California system isconfirmed rather than undermined by the fact that thetrial court’s discretion in selecting among the three base-rangeterms is subject to the constraint, set out in CaliforniaPenal Code section 1170(b), that “the court shall orderimposition of the middle term, unless there are circumstancesin aggravation or mitigation of the crime.” Section1170(b) is not a threshold requirement that renders anupper term sentence unauthorized in the absence ofjudicial factfinding beyond the verdict alone. Instead,section 1170(b) is a reasonableness constraint on thecourt’s selection of a term within the base range after thecourt has considered all of the relevant circumstancesrelating to the offense and offender. The court’s selection ofa sentence within the base range is reviewed for abuse ofdiscretion. In this way, section 1170(b) operates like thereforms this Court adopted in Booker.
Download Cunningham_Brief_for_Respondent.pdf
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