Today, as had been anticipated, the Office of the Solicitor General filed the petition for writ of certiorari in U.S. v. Booker, No. 04-104 (7th Cir.), and the petition for cert. before judgment in U.S. v. Fanfan, No. 04-105 (from D.Me. - appealed last week to 1st Cir.).
The Questions Presented are the same in both cases and are as follows:
- Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant.
- If the answer to the first question is “yes,” the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction.
In addition, the government has moved for expedited consideration of these petitions, and, if granted,for an expedited briefing and hearing schedule. You can find links to PDF copies of all of these documents here at Sentencing Law and Policy.
It was expected that the questions presented would be of a targeted scope. Obviously, even if the Court answered said Blakely applies to the federal sentencing guidelines and then went on to address the issue of severability, regardless of its holding in the latter question there would still be much to resolve, be it in Congress and/or before the Courts.
