Summary
In United States v. Baert, ___ F.Supp. 2d ___, 2004 WL 2009275 (D.Me.), Judge Hornby held in a one paragraph opinion that until the Supreme Court rules otherwise, his interpretation of Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531 (2004) in United States v. Fanfan, ___ F.Supp. 2d ___ 2004 WL 1723114 (D.Me. 2004), cert. granted, ___ U.S. ___, 2004 WL 1713655 (2004) (the companion case to Booker), requires the government to include sentencing allegations in its indictments.
Summary of this case from U.S. v. JamisonOpinion
Criminal No. 03-116-P-H.
September 8, 2004
George T. Dilworth, Office of the United States Attorney, Portland, ME.
Martin Ridge, Beagle Ridge, LLC, Portland, ME, for Defendant.
ORDER ON DEFENDANT'S MOTION TO STRIKE
This motion to strike raises the issue whether allegations pertinent to sentencing should be stricken from an Indictment as surplusage under Fed.R.Crim.P. 7(d). Given this District's interpretation of Blakely v. Washington, 124 S. Ct. 2531 (2004), see, e.g., United States v. Fanfan, 2004 WL 1723114 (D. Me. June 28, 2004); United States v. Zompa, 326 F. Supp.2d 176 (D. Me. 2004), the government must include such allegations in order to obtain what it considers an appropriate sentence under the United States Sentencing Guidelines. Perhaps by the time of trial in this case, the Supreme Court will have decided Fanfan and Booker and given us clear guidance on how the federal Guidelines are to be administered post-Blakely, or perhaps the defendant will decide to waive Blakely issues and let the judge rather than the jury decide sentencing factors, or perhaps the sentencing factors can be bifurcated and tried later to the same jury if the defendant is convicted, but until then the sentencing allegations are proper in the Indictment. The defendant's motion to strike surplusage is DENIED.
Accord United States v. Booker, 375 F.3d 508 (7th Cir. 2004); Unites States v. Ameline, 376 F.3d 967 (9th Cir. 2004). But see United States v. Hammoud, 378 F.3d 426 (4th Cir. 2004); United States v. Pineiro, 377 F.3d 464 (5th Cir. 2004).See also United States v. Penaranda, 375 F.3d 238 (2d Cir. 2004).