DOJ Sends Out Blakely Memo to Prosecutors
Update: The Senate Judiciary Committee will hold a Blakely hearing July 13. Sen. Orrin Hatch will preside--not a good sign.
Courtesy of Law Professor Doug Berman of the blog Sentencing Law and Policy, we now have access to the memo DOJ circulated Friday (pdf) to federal prosecutors with Blakely guidance. The opening paragraph reads:
The position of the United States is that the rule announced in Blakely does not apply to the Federal Sentencing Guidelines, and that the Guidelines may continue to be constitutionally applied in their intended fashion, i.e., through factfinding by a judge, under the preponderance of the evidence standard, at sentencing. The government’s legal argument, which will be developed more fully in a model brief that the Criminal Division will distribute, is that the lower federal courts are not free to invalidate the Guidelines given the prior Supreme Court decisions upholding their constitutionality, and that, on the merits, the Guidelines are distinguishable from the system invalidated in Blakely.
Update: Here's another key paragraph, instructing prosecutors what to do if courts say Blakely applies to the federal sentencing guidelines:
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