July 27, 2004

Blakely Applies to USSG and they are Severable - Judge Singal (D.Me.)

As we patiently await for the Supremes, the issue of whether the federal sentencing guidelines are severable continues to wreak havoc in the lower courts with judges heading in different directions. Judge George Z. Singal in U.S. v. Zompa, No. 04-46 (D.Me. July 26, 2004) just joined Judge Hornby's Fanfan reasoning holding the guidelines severable, as Judge Gertner (D.Mass.) held them not severable and unconstitutional in their entirety. See previous post. Of course, the severability issue depends on whether Blakely applies to the guidelines to begin with, another matter which has caused splits and is also before the Supreme Court.

In the meantime, Washington State has filed before the Supreme Court a petition for rehearing of Blakely itself, see petition here at Blakely Blog, arguing that the majority in Apprendi was wrong as to the historical underpinnings for the decision (and these were simply adopted without questioning in Blakely). I want to see Justice Scalia's response to this.