Scotus Blog reports as follows:

Our sources who litigate these cases and have excellent contacts (you know who you are, and we thank you) tell us that there is an excellent prospect that the Solicitor General will likely take the post-Blakely questions under the Guidelines to the Supreme Court on Wednesday. One or both of two filings are contemplated: a cert. petition in the Seventh Circuit's Booker case (in which Judges Posner and Easterbrook divided); and a petition for cert. before judgment in United States v. Fanfan (a district court decision from the District of Maine that was just appealed by the government to the First Circuit). Both cases involve drug conspiracies.

The government will move to expedite both the cert. and merits stages of the cases, seeking: that any response to the petitions be filed within a week, that cert. be granted by August 2, and that merits briefing be completed by mid-September or early-October (under alternative schedules that are being discussed). Argument would be held immediately thereafter.

The Booker case was briefed and argued in the 7th Circuit by TalkLeft contributor TChris. We can't wait till he gets to the Supreme Court. On the other hand, if the Supremes take the case, it will entail an enormous amount of work, particularly in light of the expedited briefing schedule, and he may have less time to blog. Then again, if we had a choice between litigating a case in the Supreme Court and blogging, we know which one we'd choose, so we're behind TChris all the way. Even if it means blogging alone for a while.

The New York Times is expected to break the news Tuesday, although the cert petitions most likely won't be filed until Wednesday. We don't know for sure which of the two cases--or whether both will be taken up to the High Court, but we have a strong suspicion it will be both of them.

Update: As predicted, here is the New York Times article.

The Wall Street Journal (subscription only) has some very high praise today for Law Professor Doug Berman's Sentencing Law and Policy blog that is keeping track of all things Blakely related.

For the nation's federal judges and the defense lawyers and convicts who come before them, June 24 was a momentous day. For Douglas Berman, a 35-year-old law professor at Ohio State University in Columbus, the day marked the beginning of his Warholian moments of fame. On that date, the U.S. Supreme Court struck down tough sentencing guidelines used in Washington state. The high court said any factor increasing a criminal sentence must be admitted by the defendant in a plea deal or proved to a jury. Since then, Mr. Berman has become the chronicler of the sweeping effect of the Blakely v. Washington ruling on the nation's courts.

As the creator of a Web log, or blog, called Sentencing Law and Policy , Mr. Berman has established himself as the go-to guy for all things Blakely for federal and state judges, defense lawyers, prosecutors and prisoners' relatives. Although the 5-4 Supreme Court ruling technically affects only one state's court system, its greatest impact so far has been on federal sentencing guidelines, whose constitutionality has been called into question in dozens of court rulings nationwide, almost all of them posted on Mr. Berman's blog.

No question about it, Professor Berman has become the "go-to source" on Blakely. He's due not only praise, but a big thank you.

by TChris

Doctors in Myrtle Beach who received ridiculously harsh sentence for overprescribing pain medication may be resentenced in light of Blakely.

[Dr.] Bordeaux, for example, was specifically charged with writing four prescriptions to two patients but was assigned a share of responsibility for the entire amount of drugs prescribed at the clinic.

Dr. Bordeax was sentenced to eight years and one month in prison. Two co-defendants were sentenced to 24 years, four months and 19 years, seven months.

by TChris

Another district judge, Stewart Dalzell, weighs in on Blakely's impact on the federal sentencing guidelines:

A federal judge yesterday halved the recommended 30-year prison sentence for a West Philadelphia drug dealer, ruling that the U.S. Supreme Court's decision voiding Washington state's sentencing guidelines had doomed the federal guidelines as well.

Yesterday, following the Supreme Court's theory in Blakely, Dalzell stripped away any sentencing enhancements not based on facts included in the charges to which Leach himself pleaded guilty.

The Sixth Circuit today ruled that the Supreme Court's Blakely Decision. invalidates the Federal Sentencing Guidelines. Law Prof Doug Berman reports:

,,,,and now in US v. Montgomery, 03-5256 (6th Cir. July 14, 2004), the Sixth Circuit becomes the second federal circuit court to hold that Blakely invalidates invalidates the federal guidelines. The Court found:

In order to comply with Blakely and the Sixth Amendment, the mandatory system of fixed rules calibrating sentences automatically to facts found by judges must be displaced by an indeterminate system in which the Federal Sentencing Guidelines in fact become "guidelines" in the dictionary-definition sense ("an indication or outline of future policy," Webster's International Dictionary (3d ed. 1963)). The "guidelines" will become simply recommendations that the judge should seriously consider but may disregard when she believes that a different sentence is called for....

Here's another line from the opinion:

In light of Blakely, and the language of the enabling act itself, a district judge should no longer view herself as operating a mandatory or determinate sentencing system, but rather should view the guidelines in general as recommendations to be considered and then applied only if the judge believes they are appropriate and in the interests of justice in the particular case.

The Senate Judiciary Committee held a hearing this morning on the Supreme Court's Blakely decision. Law Prof Doug Berman of Sentencing Law and Policy has textual summaries and written testimony.

The Blakely blog has the testimony of Alan Vinegrad and Rachel Barkow (pdf).

There's now a split in the circuits. The 5th Circuit Court of Appeals has held the federal sentencing guidelines constitutional in US vs. Pineiro, no. 03-30437. (pdf.) The panel was unanimous. One of the panel members was Bush recess appointee Charles Pickering. Link via Sentencing Law and Policy which has analysis up already.

Also, check out Blakely Blog. Looks like we're headed back to the Supreme Court on this one.

Update: The National Association of Criminal Defense Lawyers' (NACDL) letter to Sen. Hatch on Blakely is here.

Update: ABA President Dennis Archer sent Sen. Hatch this letter today in advance of tomorrow's Senate Judiciary Committee hearing. Some quotes:

Confusion over state and federal sentencing continues. Today's news includes:

• USA Today
• Seattle Post Intelligencer
• Tampa Tribune

And a second federal judge in the Eastern District of New York has found the Sentencing Guidelines unconstitutional.

TChris's Blakely brief in the 7th Circuit Booker case is now available here.

Tuesday, the Senate Judiciary Committee holds its first hearing on the problems engendered by Blakely.

Martha Stewart's lawyers have filed a motion in the wake of the Blakely decision arguing that the Judge is not bound by the Guidelines and can give her probation. Martha's sentencing is set for July 16.

Stewart's lawyers say the Supreme Court's ruling in Blakely prevents Cedarbaum from considering any facts not heard by the jury when weighing Stewart's prison sentence. Without the guidelines, Stewart would face a sentence ranging from five years to probation.

Drug War Chronicle explains the chaos caused by the Supreme Court's Blakely decision. Here are some snippets:

This is the closest thing to legal anarchy I've seen in my lifetime," said Douglas Berman, professor of law at Ohio State University's Moritz College of Law and publisher of the Sentencing Law and Policy web log (blog). "This represents a fundamental shift in power, at least for now. Before this, all the levers of power were disproportionately in the hands of prosecutors. That's all been scrambled by Blakely, but who gets the bigger clubs now remains to be seen," he told DRCNet.

"Blakely was a blockbuster, concurred Jack King, communications director for the National Association of Criminal Defense Lawyers. "Things are really in a state of flux. Some people are pushing at the extremes declaring the whole system unconstitutional, but that contradicts Congress' intent. Congress wanted to limit judicial discretion. This is the best thing that could have happened because the system had fossilized. Maybe now we can start over, but if in the meantime defendants are getting lesser sentences, who is to say that's a bad thing?"

Law Prof Doug Berman at Sentencing Law and Policy reports that William Mercer, US Attorney from Montana, will serve as the DOJ witness at Tuesday's Senate Judiciary Committee hearing on Blakely.

Mercer, a contributor to the Federal Sentencing Reporter is somewhat noted (some might say notorious) for his complaints about judicial abuse of downward departure authority. Prior to passage of the PROTECT Act and its Feeney Amendment, Mercer testified before the US Sentencing Commission about cases where judges "evaded" lawful guidelines by using their departure authority.

Prof. Berman also has links to the text of two letters addressed to the US Sentencing Commission, one from the Practitioners' Advisory Group and the other from the Federal Defenders, concerning Tuesday's hearing and recommendations to Congress.

You can read the 65 page Ken Lay Superseding Indictment here (pdf). Why would you want to? Well, if you're a defense lawyer, page 64 has the sentencing allegations, which gives you a nice preview of how the Government thinks it will get around Blakely. We've read the DOJ memos on what they intend to do, but this shows it in application.

Way to go, TChris. TChris is the first defense lawyer in the country to have a federal court of appeals declare the U.S. Sentencing guidelines unconstitutional as applied following the Supreme Court's Blakely decision.

Since the Blakely decision came down, TChris has been working night and day on his case. He did the oral argument last week.

We are so proud of our contributing blogger, and feel extra lucky to have him blogging on TalkLeft.

Update: The Chicago Tribune examines the decision in TChris's case and the impact of Blakely across the country.