Friday, August 13, 2004
Mincey: "We are not saying Blakely does not apply to guidelines, just that we are not going to apply it"
As I read the opinon in U.S. V. Mincey, No. 03-1419 (2d Cir. August 12, 2004) (Second Circuit directs all district courts within the circuit to apply the sentencing guidelines as before Blakely until the Supreme Court indicates otherwise) it follows the Government's position that Blakely does not apply to the federal sentencing guidelines without saying as much. I consider this will present a windfall for many defendants sentenced with judge found facts using a preponderance of the evidence standard. And since 2d Circuit has told its lower courts not to apply Blakely, no sentence enhancing factors will be submitted to the jury. All defendants have to do is properly presere their objections.
Posted by Tom Lincoln at 8/13/2004