Comments on US v. Leach, No. 03-CR-114-H (N.D. Ok. Aug. 13, 2004)

In U.S. v. Leach, No. 03-CR-114-H (N.D. Ok. August 13, 2004), Chief Judge Holmes follows the same approach he followed in U.S. v. O'Daniel which we commented upon here, inasmuch as he granted defendant the opportunity to withdraw the pre-Blakely plea and, when defendant did not, took this to mean that it was a voluntary and intelligent plea, as well as a waiver of a jury as fact-finder, and then proceeded to sentence her using the guidelines - to some extent - but not in full, as he did used the beyond a reasonable doubt standard rather than the preponderance of the evidence.

While I applauded his decision to use the beyond a reasonable doubt standard, as well as the reasons he gave for doing so, I am beginning to think that Chief Judge Holmes has found a curious way of forcing defendants to play his game of applying the guidelines but using the beyond a reasonable doubt standard through what one commentator at Sentencing Law and Policy referred to as a "trick question" - i.e., the opportunity to withdraw the pre-Blakely plea, and then using their refusal to withdraw the plea as a knowing and voluntary waiver of the jury trial right to find the facts.