July 28, 2004

Respondents and Amici File Before the Supreme Court in Booker, Fanfan, etc.

Today we had a number of filings by respondents regarding the Government's petition for writ of certiorari to the Seventh Circuit in Booker, and the petition for certiorari before judgment to the First Circuit in Fanfan, and their respective positions as to the Government's motion for expedited briefing and argument. We also had a great amici brief filed by the NACDL and NAFD (National Association of Federal Defenders). I found this latter most interesting in its request for the Court to reformulate the questions presented by the Solicitor General's petitions.

Here are links to the various briefs
Defendant's Response in Booker
Defendant's Brief in Opposition in Fanfan
NACDL and NAFD Amici Brief

In the Fanfan Brief in Opposition it is argued that Cert. Before Judgment should not issue because the Government has not met the high burden imposed by Supreme Court Rule 11, "[a] petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court." "In support of certiorari in this case, the government argues only that the Blakely question is important. Pet. 6-9." Brief in Opp. 4.

The petition is also opposed on the following ground:
Moreover, this case has significant vehicle problems in its own right. To reach the Blakely question in this case, this Court would first need to address the knotty, and logically antecedent, question whether 21 U.S.C. §§ 841 and 846 violate the Sixth Amendment because they require judges to impose gradually higher sentences after finding facts about drug type and quantity by a preponderance of the evidence, or whether, on the other hand, those provisions are properly construed to define a set of greater and lesser offenses with different elements according to drug type and amount. This question was raised but, in reliance on the Guidelines's [sic] "relevant conduct" provisions, not answered in Edwards v. United States, 523 U.S. 511, 516 (1998) ("[W]e need not, and we do not, consider the merits of petitioners. statutory and constitutional claims."); see also Edwards Pet. Br., No. 96-8732, 1997 WL 793079, at *32 (U.S. Dec. 17, 1997); United States v. Vazquez, 271 F.3d 93, 107-115 (3d Cir. 2001) (en banc) (Becker, C.J., concurring).
Fanfan Brief in Opp. 6. The NACDL Amici Brief also argued that Fanfan was not a proper case for the case to take up the Blakely issues.

All respondents and amici objected to the expedited briefing schedule requested by the Solicitor General.