The Attorney General seeks rehearing only as to Part III.C of the majority opinion and argues that the 1

Tennessee Criminal Sentencing Reform Act of 1989 (“Reform Act”) violates the Sixth Amendment.

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, and amicus curiae, Tennessee Association of Criminal Defense Lawyers.

1

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
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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 byapplying in Booker a remedywhich created a discretionarysentencing 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.