State v. Gomez

                     IN THE SUPREME COURT OF TENNESSEE
                                AT NASHVILLE
                                         Heard at Knoxville
                                       January 4, 2005 Session

       STATE OF TENNESSEE v. EDWIN GOMEZ and JONATHAN S.
                           LONDONO

                    Appeal by Permission from the Court of Criminal Appeals
                              Criminal Court for Davidson County
                          No. 2001-A-280    Cheryl Blackburn, Judge



                        No. M2002-01209-SC-R11-CD - Filed May 18, 2005




                     ORDER DENYING PETITION FOR REHEARING
       Petitions for rehearing have been filed by Edwin Gomez, Jonathan Londono, the Attorney
General and Reporter,1 and amicus curiae, Tennessee Association of Criminal Defense Lawyers.
The petitioners primarily argue that the majority opinion rests upon a misunderstanding and
misapplication of the United States Supreme Court’s decisions in Jones v. United States, 526 U.S.
227 (1999), Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002),
Blakely v. Washington, 542 U.S. __, 124 S. Ct. 2531 (2004), and United States v. Booker, __ U.S.
__, 125 S. Ct. 738 (2005).

        The arguments advanced in the petitions to rehear were considered and rejected by a majority
of this Court in its original opinion. We remain convinced that Blakely must be read in light of
Booker. To do otherwise would not serve to “preserve Sixth Amendment substance.” Booker, 125
S. Ct. at 752. In Booker, Justice Stevens explained:

                If the Guidelines as currently written could be read as merely advisory
        provisions that recommended, rather than required, the selection of particular
        sentences in response to differing sets of facts, their use would not implicate the
        Sixth Amendment. We have never doubted the authority of a judge to exercise broad
        discretion in imposing a sentence within a statutory range. Indeed, everyone agrees
        that the constitutional issues presented by these cases would have been avoided
        entirely if Congress had omitted from the [Sentencing Reform Act] the provisions
        that make the Guidelines binding on district judges; it is that circumstance that makes

        1
         The Attorney General seeks rehearing only as to Part III.C of the majority opinion and argues that the
Tennessee Criminal Sentencing Reform Act of 1989 (“Reform Act”) violates the Sixth Amendment.
       the Court’s answer to the second question presented possible. For when a trial judge
       exercises his discretion to select a specific sentence within a defined range, the
       defendant has no right to a jury determination of the facts that the judge deems
       relevant.

Id. at 750 (citations omitted). The Court harmonized the Federal Sentencing Guidelines with the
Sixth Amendment by applying in Booker a remedy which created a discretionary sentencing scheme.
Id. at 764. We are not persuaded that the differences between the Reform Act and the post-Booker
Federal Sentencing Guidelines are constitutionally significant. If the Sixth Amendment
countenances a sentencing scheme that permits judges to find facts relevant to sentencing and affords
judges discretion to select a sentence anywhere within a statutory range, even in the absence of
enhancing facts, we are unable to conclude that the Sixth Amendment forbids a sentencing scheme
in which a state legislature limits judicial discretion by designating the presumptive sentence that
must be imposed when a judge finds no enhancement or mitigating factors.

       The petitions for rehearing are DENIED.

        Justice Anderson and Justice Birch continue to adhere to the position stated in the original
dissenting opinion, and on those grounds, would grant the petitions to rehear.



                                              FOR THE COURT:




                                              _______________________________
                                              FRANK F. DROWOTA, III,
                                              CHIEF JUSTICE



Concurring:
Janice M. Holder and William M. Barker, JJ.

Dissenting:
E. Riley Anderson and Adolpho A. Birch, Jr., JJ.




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