The Eighth Circuit speaks!!

I just got word that in US v. Mooney, the US Court of Appeals for the Eighth Circuit in a per curiam decision from a panel with Judges Murphy, Lay, and Bright, affirmed the defendant’s convictions for mail fraud, securities fraud and money laundering and then “remand[ed] Mooney’s sentence to the district court for consideration of the issue he raises under Blakely v. Washington.”

In a separate opinion, Judge Lay and Judge Bright hold that the federal Sentencing Guidelines are unconstitutional because they violate a defendant’s Sixth Amendment right to have a jury find beyond a reasonable doubt and all facts legally necessary to his sentence, and the court adopts the approach set forth in US v. Croxford (D. Utah June 29, 2004) treating the Guidelines as non-binding but advisory, unless the defendant consents to a Guidelines sentence; on remand the district court should exercise its sound discretion to resentence defendant within the statutory minima and maxima of the offenses for which he was convicted. Judge Murphy — who was the Chair of the US Sentencing Commission until a few months ago — dissents from the majority opinion holding the guidelines unconstitutional.

UPDATE with analysis: Though not making as many important rulings as the Ninth Circuit decision in Ameline (details here and here), this decision in Mooney is fascinating and important in large part because of the cast of characters and also the factual setting. Though deeper commentary will follow late tonight, it bears note now that Judges Bright and Lay are both long-standing critics of the federal guidelines. See, e.g., Stith & Cabranes, Fear of Judging pp. 195-96 (1998) (lengthy endnote detailing copious (pre-Feeney) judicial criticism of the guidelines). And, as noted above, Judge Murphy served with distinction as the head of the USSC for over four years until resigning earlier this year. And, just to make the story richer, the sentence being reviewed was imposed by Judge James Rosenbaum, a name well known to those who closely follow federal sentencing reform (background here).

Of course, also in this interesting cast of characters is the defendant, Michael Mooney, who is not a low-level drug dealer but a former corporate vice-president convicted of insider trading. The decision in Mooney shows how complicated the guidelines make sentencing for economic crimes and also the challenges likely posed if complex financial issues have to be resolved by juries in the post-Blakely world. The decision also reveals — though it does not discuss at any length — the potentially very important and very challenging distinction between sentencing issues of law (what legally qualifies as “gain”) and sentencing issues of fact (how much “gain” was in fact realized).