The 145 pages of the Fourth Circuit's opinions in Hammoud

Here, over a month since the argument, are the en banc Fourth Circuit's opinions in Hammoud, dealing with the application of Blakely to the U.S. Sentencing Guidelines (among many interesting issues - the Blakely discussion starts on page 48).

There were six opinions: Chief Judge Wilkins wrote the opinion, in which Judges Wilkinson, Niemeyer, Williams, Traxler, King, Shedd, and Duncan joined and in which Judge Widener joined as to all except Part VII.C. Judge Wilkinson wrote a concurring opinion. Judge Shedd wrote a concurring opinion. Judge Widener wrote a concurring and dissenting opinion. Judge Motz wrote a dissenting opinion, in which Judges Michael and Gregory joined. Judge Gregory wrote a dissenting opinion.

There is an interesting Daubert holding in this opinion, as the U.S. relied on expert testimony about Hizballah (or is it Hezbollah), and the majority opinion affirms its admissibility.

The "instructions to the district courts" relating to alternate sentencing begin on page 68, and includes a footnote directed at Judge Goodwin's criticism of the idea of sentencing both ways.

In his concurring opinion, Judge Wilkinson wrote this: "The great drawback of applying Blakely v. Washington, 124 S. Ct. 2531 (2004), to the Sentencing Guidelines is that in doing so the federal courts would perform a legislative function. It is and always has been the prerogative of the legislature to define the elements of a criminal offense. In denominating those sentencing factors which must now be treated as elements and found by a jury, the courts arrogate to themselves the most basic of legislative tasks. I do not think the judiciary can legislate the elements of a criminal offense without bending the Constitution beyond recognizable shape."

Judge Widener dissented from the instructions to the district courts, noting, among other things, that "[a]s a practical matter, if the advisory-only sentence is lower than the Guidelines sentence, an appeal will be guaranteed."

Judge Motz began her dissent with this: "The Supreme Court has spoken: When a sentencing 'system' permits a 'judge [to] inflict[] punishment that the jury’s verdict alone does not allow' it violates a defendant’s Sixth Amendment right to trial by jury. Blakely v. Washington, 124 S.Ct. 2531, 2537, 2540 (2004). In this case, the United States Sentencing Guidelines permitted the district judge to inflict punishment on Mohammed Y. Hammoud thirty times greater than that allowed by the jury verdict alone. Blakely makes clear that such a sentence violates the Sixth Amendment; the majority can reach a contrary conclusion only by resolutely refusing to follow Blakely."

In the last 32 pages of the 145, Judge Gregory, who joined in Judge Motz's opinion on sentencing, dissents on issues relating to the conviction. Apparently, he was alone on these issues, if my scorekeeping is correct.