The courts decision to vacate the sentence, sua sponte, notwithstanding Prees failure to raise the issue, is a remarkable change from its previous decisions. As recently as Aug. 31, in U.S. v. Messino, 2004 WL 1925420 (7th Cir., Aug. 31, 2004), the court could have done the same thing, but chose not to, even though a dissenting judge thoroughly addressed the issue.
In Messino, three defendants all received various sentence enhancements for their roles in a conspiracy to distribute cocaine. Two of the defendants made nominal constitutional challenges to their sentences, but the third made no challenge at all.
The majority opinion was written by Judge William J. Bauer, and joined by Judge Michael S. Kanne (the only judge to participate in both cases). Without discussing what the two defendants did that was sufficient to preserve their challenges, the majority held that the sentence enhancements must be reversed in light of Blakely v. Washington, 124 U.S. 2531 (2004) and U.S. v. Booker, 375 F3d 508 (7th Cir. 2004).
The sentence of the third defendant, who did not raise the issue at all, was affirmed, without any discussion of whether Blakely and Booker should apply to him, notwithstanding his failure to raise the issue.
Judge Frank H. Easterbrook dissented, and discussed retroactive application of Blakely, concluding that the majority opinion implicitly holds that a defendant preserves a Blakely issue, if he wrote a few sentences flagging the point, but that, if no argument was made at all, an error does not require reversal under plain-error standard, because it does not seriously affect the fairness, integrity, or public reputation of judicial proceedings.
Judge Easterbrook also stated that the mandate should be stayed pending resolution of the issue by the Supreme Court in the Booker case. However, just as the majority opinion did not address what was necessary to preserve a Blakely challenge, it also did not address whether the mandates should be stayed.
Thus, of all the Seventh Circuit decisions addressing Blakely since Booker, this one is probably the most significant, because it finally resolves who is and isnt entitled to raise a challenge, and effectively holds that everyone is. In light of this holding, it would seem that the unlucky third defendant in Messino should be able to move for reconsideration, and have his enhancement vacated, as well.
Another such defendant may be the one in U.S. v. Ford, 2004 WL 1965653 (Sept. 3, 2004). In that case, the court found that Ford had not raised a challenge and thus, reviewed the Blakely claim for plain error. Finding none, the court upheld his sentence.
It is not clear why the court has decided to do an abrupt about face on this issue, sua sponte, without the issue even being raised by the parties. Given the conflict between the holdings in the case at bar and in Ford and Messino, the question may ultimately result in review by an en banc panel, but in the meantime, all defendants should be able to benefit from this holding, even if the mandates will be stayed, and they will only actually benefit if Booker is upheld in the Supreme Court.
– David Ziemer
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David Ziemer can be reached by email.