Positions of DOJ and NACDL before the Supreme Court from Blakely to Booker and Fanfan

I was just reading NACDL's amicus brief in support of petitioner in Blakely v. Washington. This is not the merits brief, but the brief in support of the petition for writ of certiorari. I found curious the following excerpt:

III. Applying Apprendi to Upward Departures from Statutory State Sentencing Guidelines Would Not Invalidate the Federal Sentencing Guidelines, Which are Promulgated by an Independent Commission Within the Judicial Branch.

The rule set forth in Apprendi is confined to facts “that increase the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, 530 U.S. at 490 (emphasis added). Thus, this Court has so far limited Apprendi to sentencing ranges that are established by legislative acts. See id. (“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”) (emphasis added); id. at 481 (noting that judges have historically “exercise[d] discretion . . . in imposing a judgment within the range prescribed by statute”) (emphasis added).

Washington’s sentencing guidelines are established by statute. See Wash. Rev. Code § 9.94A.310 (2000). Therefore, Apprendi squarely governs sentences that exceed the maximums set by those guidelines. The sentencing ranges in the federal Sentencing Guidelines, on the other hand, are not statutory and are not set by the legislature. Rather, the federal guidelines are established by the United States Sentencing Commission, an “‘independent commission in the judicial branch of the United States.’” Mistretta v. United States, 488 U.S. 361, 368 (1989) (quoting 28 U.S.C. § 991(a)).

Because the federal guidelines are the product of “an independent rulemaking body . . . within the Judicial Branch,” id. at 385, the federal guidelines do not establish “statutory maximum[s]” for purposes of Apprendi. 530 U.S. at 490. Thus, deciding that Apprendi applies to upward departures from state statutory sentencing guidelines would not usurp the federal court’s role in making findings under the federal sentencing guidelines. This Court may properly leave that latter issue—whether Apprendi applies to the federal sentencing guideline ranges—for a later day.

Apparently, from NACDL's brief in support of respondents in Booker and Fanfan, that "later day" did not take long to arrive.

The United States, in its amicus brief in Blakely, took the position that the Court's application of Apprendi to Blakely would call into question the constitutionality of the federal sentencing guidelines, only to now argue that Blakely does not apply to the guidelines.

Talk about reversal of positions!