United States v. Ameline (majority)

“Edwards did not argue that the Guidelines sentencing scheme violated his Sixth Amendment right to a jury trial; indeed, Edwards presumed that had the jury identified whether cocaine or cocaine base was the object of the conspiracy, the district court could have properly determined the quantity of the identified drug at sentencing consistent with the Sixth Amendment. "The Court did not opine on the guidelines' consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment challenge to the guidelines because there was no Sixth Amendment challenge to the guidelines. We are obligated therefore to make our own constitutional determination." Booker, 2004 U.S. App. LEXIS 14223, 2004 WL 1535858, at *5. n13

“n13 The flood of post-Blakely scholarship supports this conclusion. See, e.g., Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed. Sentencing Rep. __, n.21 (forthcoming June 2004) (available at http://sentencing.typepad.com/
sentencing_law_and_policy/files/kingklein_beyond_blakely.pdf) ("We agree with Judge Posner on this point."); Stephanos Bibas, Blakely's Federal Aftermath, 16 Fed. Sentencing Rep. __, 6 (forthcoming June 2004) (available at http://sentencing.typepad.com/sentencing_law_and_policy/files/
bibas_blakelys_federal_aftermath.pdf) ("Because Edwards did not squarely resolve a Blakely challenge, lower courts are not bound to reject Blakely challenges to the Guidelines.").”
United States v. Ameline, 376 F.3d 967, 978 (9th Cir. 2004)   

    

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