The irony of it all if it is Fanfan that the Court takes up

As reported in Sentencing Law and Policy citing an e-mail posted on the NACDL list-serve from Rosemary C. Scapicchio, attorney for Ducan Fanfan, it appears that the Office of the Solicitor General may request direct review before the Supreme Court of U.S. v. Ducan Fanfan, (D.Me., June 28, 2004) (partial sentencing transcript can be found here) by distinguished Judge D. Brock Hornby, District of Maine (with chambers always awaiting him in Puerto Rico). The e-mail reads as follows:

I received a message from Michael R. Dreeben from the Solicitor General's Office on Friday. They claim they are considering appealing Fanfan's sentence directly to the Supreme Court. We did not file an appeal because we got the benefit of Blakely. That makes this case a pure sentencing issue. Dreeben is asking about cross-appeal. Claims he has spoken to the Supreme Court and has tentatively set a schedule as follows: Government to file their petition by August 2, 2004. Fanfan response due in 10 days. Government will file it's brief by end of August. Fanfan by September. Argument the first Monday in October. I have not officially responded because I am looking for everyone's input and I need to speak to Fanfan. Any and all suggestions welcome.

Other than for D.Mass Chief Judge William G. Young, who anticipated Blakely in his June 18, 2004 Sentencing Memoranda in U.S. v. Richard Green, et al., Judge Hornby was the first - to my knowledge - to quietly and without fanfare apply Blakely's holding to the federal sentencing guidelines in Fanfan.

Now, if it is Fanfan that goes on direct appeal to the Supreme Court, by-passing the First Circuit, there's some irony in it all.

Judge D. Brock Hornby was one of six judges named by Chief Justice Rehnquist to serve on a high-level panel investigating the handling of judicial misconduct. The panel is headed by U.S. Supreme Court Justice Stephen G. Breyer. As reported in the Portland Press Herald on June 1, 2004:

The committee's mission is to "evaluate how the federal judicial system is dealing with judicial misbehavior and disability," according to a statement by court administrators.

The panel was created by U.S. Supreme Court Chief Justice William Rehnquist in response to criticism from House Judiciary Committee Chairman F. James Sensenbrenner, R-Wis.

In a speech to the federal judiciary that Rehnquist attended, Sensenbrenner called one recent investigation of misconduct charges a "whitewash," and threatened further action.

Sensenbrenner raised concerns about the handling of complaints regarding a district court judge who allegedly handed out illegally lenient sentences in violation of federal sentencing guidelines.

Judge Hornby was already appointed to the committee at the time he decided Fanfan. Will Rep. Sensenbrenner next request that he step down and that the committee investigate him for imposing an "illegally lenient sentence" in violation of the federal sentencing guidelines? We would like to think that someone in Mr. Sensenbrenner's position would instead step back at this juncture and seize the moment and the opportunity to let others who know better establish federal sentencing policy. Blakely presents a great opportunity to change much that is very, very wrong with federal sentencing policy and save much that is very good about the guidelines. Mr. Sensenbrenner has repeatedly shown simply does not grasp the problems created by mandatory minimums. Mr. Sensenbrenner, with all due respect, quietly step aside, please.