So, we still do not have "guidance" from the First Circuit, but neither do we have any dumb orders saying that the guidelines should be continued to be applied as if Blakely had never been decided. In other words, the First still believes that the blind ought not to lead the blind.
Counsel for appellant submitted two letters pursuant to Fed. R. App. P. 28(j) in which he asserted that, under Blakely v. Washington, 124 S.Ct. 2531 (2004), this court should strike down the federal sentencing guidelines and remand this case. Blakely held that a sentence that was enhanced on the basis of factors found by the judge, rather than the jury, violated the defendant's constitutional right to trial by jury. The appellant in this case, however, received the minimum statutory sentence, and counsel has offered no explanation as to why Blakely would apply. The argument is thus waived. See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 28 (1st Cir. 2003) (issue deemed forfeited by failure to marshal pertinent facts or engage in reasoned analysis).
August 19, 2004
First Circuit Watch: Court finds Blakely argument inapplicable, waived, and forfeited
In United States v. Carlos Lopez , No. 03-1767 (1st Cir. August 19, 2004), the Court indicated at n. 1: