Ninth Circuit finds Double Jeopardy bar to government sentencing appeal

The Ninth Circuit today has an interesting Double Jeopardy ruling today in US v. Blanton, No. 05-50302 (9th Cir.  Feb. 12, 2007) (available here).  Here is the decision’s introduction and conclusion:

We must determine whether the Fifth Amendment’s Double Jeopardy Clause prohibits the government from appealing a district court’s allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement….

In summary, we agree with Blanton that the district court resolved the issue of guilt or innocence in his favor, and that the Double Jeopardy Clause bars this appeal. See Ogles, 440 F.3d at 1103-04.  It is immaterial whether the district court’s interpretation of the relevant legal issue was correct. Id. at 1103; see also Smalis, 476 U.S. at 144 n.7; Smith v. Massachusetts, 543 U.S. 462, 469 (2005). Under 18 U.S.C. § 3731, therefore, the government is without authority to appeal.

There are significant Apprendi-related aspects to this ruling, and I think it may be out of step with some other circuit rulings.  It thus will be interesting to see if DOJ seeks en banc review or cert in Blanton.