To the Supremes! The Second Circuit, in United States v. Penaranda, has certified three questions to the Supreme Court for resolution in light of its decision in Blakely v. Washington. In Blakely, the Supreme Court held that facts that warrant enhancing a sentence must be found by a jury. Since Blakely was decided last month, there has been much speculation whether the Federal Sentencing Guidelines were constitutional in that sentences under the Guidelines are based on factors that are not decided by the jury. That question arose in this case. The Second Circuit ordered the appeals in this case to be heard in banc, limited to the issue of the validity of the defendants' sentences under Blakely. The active judges of the Court unanimously agreed that they should certify the following questions to the United States Supreme Court:

1. Does the Sixth Amendment permit a federal district judge to find facts, not reflected in a jury's verdict or admitted by a defendant, that form the basis for determining the applicable adjusted offense level under the Federal Sentencing Guidelines and any upward departure from the offense level?

2. In a case where a jury has convicted a defendant of possessing with intent to distribute five kilograms or more of cocaine and one kilogram or more of heroin, does the Sixth Amendment permit a federal district judge to determine, under the Federal Sentencing Guidelines, the quantity of drugs for which the defendant is responsible and upon whihc his based offense level and corresponding sentencing range will be calculated under U.S.S.G. 2D1.1?

3. In a case where a defendant has pled guilty to conspiring to distribute five kilograms or more of cocaine, does the Sixth Amendment permit a federal district judge to determine, under the Federal Sentencing Guidelines, (a) the quantity of drugs for which the defendant is responsible and upon whihc his base offenses level and corresponding sentencing range will be calculated under U.S.S.G. 2D1.1, (b) the applicability of a two-level enhancement to the base offense level for carrying a fun in connection with the offense, under U.S.S.G. 2D1(b)(1), and (c) the applicability of a three-level managerial role enhancement under U.S.S.G. 3B1.1(b)?

The decision can be found here.