Pending Supreme Court Case to Affect Federal and State Sentencing November 5, 2006

UPDATE: On January 9, 2007 The Supreme Court dismissed the Petition for a Writ of Certiorari as being improvidently granted. It appears that the Petitioner failed to properly comply with certain statutorily imposed procedural requirements which prevented the Court from reaching the merits of the case. We do expect the court to ultimately address the very important issues raised in Burton in a subsequent case yet to be identified. The October 2006-2007 Term of the United States Supreme Court will substantially affect federal and state sentencing issues. The Supreme Court heard arguments in a case known as Burton v. Waddington, No. 05- 05-9222, (cert granted on June 5, 2006) and will address the issue of the retroactivity of Blakely and Booker. The issues presented in Burton are:

1. Is the holding in Blakely a new rule or is it dictated by Apprendi?
2. If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively?

Needless to say, we are hopeful that the Court will rule that Blakely and Booker will apply retroactively to previously imposed sentences. If such occurs, the courts may be forced to re-sentence a large number of inmates that received enhancements based on “facts” not found by a jury or admitted to by the defendant. We are keeping a close eye on this case and will provide updates when a decision is issued.