We predict that the Court's Blakely majority will hold together and apply Blakely to the federal sentencing guidelines. We have no idea what the Court will do as to the issue of severability. But it appears to us that whatever the Court does on severability, the next move will be in Congress. We think that this post at Sentencing Law & Policy which quotes a set of "DC Observations" from Baylor Law Professor Mark Osler is a worthy but depressing read as to the Congressional mindset. But perhaps the last word will not be more mandatory minimums as many think is the likely Congressional reaction, or -even if it is more mandatory minimums, that these will not survive Court scrutiny. Professor Berman has a very encouraging post in which he indicates that
Though everyone seems to assume mandatory minimum sentencing is immune from the Apprendi/Blakely rule due to the High Court's decision in Harris, Justice Breyer expressed great reservations about his vote in that case. If Congress passes an array of mandatories after Booker and Fanfan, serious reconsideration of Harris might come sooner rather than later.He goes on to mention the Angelos case now pending before District Judge Paul Cassell in Utah., of Croxford fame. Check out the two complete posts at SL&P.
