Fast and Furious in the Face of Chaos

We already have a circuit split - Booker in the 7th and Pineiro in the 5th. And we had one case, Restrepo v. US, No. 04-5106,docketed on July 9 before the Supreme Court, which raises Blakely's footnote 9 issue, i.e., the constitutionality of the USSG regarding enhancements. Restrepo is from the Second Circuit. NACDL is considering an Amicus Curiae brief. To get matters really rolling, today the 2d Circuit, sitting en banc, unanimously voted to certify certain Blakely issues to the Supreme Court in US v. Penaranda. See Sentencing Law and Policy . It is said elsewhere, see SCOTUS Blog, that the Supreme Court discourages the use of this certification mechanism, but this is a unanimous request from the en banc 2d Circuit, so we'll see. But, as also pointed out in SCOTUS Blog, the curious thing is that the questions certified did not include the questions of severability should the Supreme Court determine that the upward adjustments in the guidelines violated Blakely and the right to have a jury determination of these factors. I note that the 2d Circuit certification request cites D.Mass. Chief Judge William C. Young's pre-Blakely opinion in US v. Richard Green. In the meantime, Judge Paul Cassell has issued his third Croxford opinion, which also discusses Booker (7th Cir.)(particularly Judge Easterbrooke's dissent), and Pineiro (5th Cir.), the latter of which was issued only hours before Croxford III. Go here for all three Croxford opinions. My opinion is that the Supreme Court will not grant the certification, and that Congress will pass legislation making the guidelines, well, guidelines, for now, to see how it all plays out in the Courts until the Supreme Court ultimately decides.