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January 31, 2005

Another 8th Circuit Booker ruling

Continuing to set the pace for circuits in rendering Booker decisions, the Eighth Circuit today issued US v. Fox, No. 03-3554 (8th Cir. Jan. 31, 2005) (available here).  Legally, there is nothing crafty about the Fox ruling; the defendant had preserved a Blakely claim and the Eighth Circuit does nothing more than remand for resentencing in accordance with Booker.  However, factually, the case provides a useful primer on why Blakely and Booker are so consequential.  Here's the court's account of how judicial fact-finding initially played a role in Fox's sentencing:

In this case, the jury made a specific finding that Fox was responsible for at least 50 grams of methamphetamine, but less than 500 grams of methamphetamine.  The presentence investigation report recommended that Fox be found responsible for 1.814 kilograms of methamphetamine.  Fox filed an objection to this recommendation and argued the objection during the sentencing hearing before the district court.  However, the district court overruled Fox's objection on this issue and found, based on a preponderance of evidence, that 1.814 kilograms of methamphetamine were attributable to Fox.  This resulted in a significant enhancement to the applicable guideline range utilized by the trial court in assessing its sentence.

In addition to providing a window on the types of cases impacted by Blakely and Booker, this case reinforces the my views, developed in this post, about requiring proof beyond a reasonable doubt in any "legislative fix" of Booker.

January 31, 2005 at 05:25 PM | Permalink

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Comments

Need citation number for Booker vs. United States and I don't know what number that would be. I am just an aunt of someone in prison.

Posted by: jinx meshnick | Jan 31, 2005 7:47:42 PM

Why the beyond reasonable doubt. I'm sure he was deeply involved in the over 1 KG of meth. Probably a lot more than that. Are you naive enough to think that the first time he did this was the only time? To even be involved with what he stipulated to makes me think this has gone on with him or her for a long time.

Posted by: joe | Jan 31, 2005 9:43:30 PM

Joe...
Who cares how many times this guy did whatever he did IN THE PAST...you go to jail for what you got caught for...beyond a reasonable doubt...what you cop to or what the jury found beyond reasonable doubt. The problem with our justice is system is the kind of juries thinking what good ol' joe thinks, such as..."I'm sure he was deeply involved"..."Probably alot more than that"...and the rest of what he said.

Alot of guys are sitting in prison for years and years because of idiot thinking like this...juries and the public alike don't care about reasonable doubt on the specific crime but on a whole bunch of unrelated and uncorroborated hearsay nonsense. Too much TV, way too much TV!

Posted by: fredw | Feb 1, 2005 12:06:47 AM

Why the beyond reasonable doubt?

Because the citizens of this country deserve that much, that's why. They deserve to have a sentence based on the merits, not some PO's government biased PSR that contains info based on unchallenged lies and uncontested hearsay. They deserve to be sentenced for items proven beyond reasonable doubt, and not for items a PO is including because he's looking for a promotion or to gain political favor.

Posted by: horst | Feb 1, 2005 12:18:39 AM

Jinx -- I use the following cite for the moment. It's not "Blue Book" (the lawyer's citation manual), but it uses all numbers I currently possess. I also italicize case names, but I'm not blog-savvy enough to make that happen here:

United States v. Booker, Sup. Ct. No. 04-104, 543 U.S. ___, 2005 WL 50108 (consolidated with United States v. Fanfan, Sup. Ct. No. 04-105) (January 12, 2005).

Joe -- your comment seems to naively presume that Government is always the good guy, that Government never charges nebulous "conspiracies" to pinch for information, and that our Constitutional rights (the "technicalities" that media teaches consumers to be appalled by) should not exist. I'm not certain I agree, and I'm not certain you would either if on the criminal docket. Unfortunately, today, it's not all that hard to find oneself on a Federal criminal docket.

I get called a lot of things as a defense attorney (especially since 9/11/01), but "naive" is not usually one of those things. It is because I'm jading, in fact, that I vehemently oppose unfounded presumptions like you have posted.

Posted by: Jay Hurst | Feb 1, 2005 7:04:07 AM

my boyfriend was convicted for 4 counts of delivery of meth. they said they did 4 controlled buys from him with a informant, she was searched by male officers prior to the buys and after, how well can a male officer search a female? the cops never saw any buys take place just her word and giving them the meth she so called bought from him, he was arrested but they didn't recover any marked money no drugs they only found baggies and old used glass pipes. i've told them i didn't want them to search the house but they said he already gave them consent, well they went threw my stuff and the glass pipes belonged to me, they never gave me a search warrent or a list of items they took, the informant was in drug court at the time she did these so called buys she was arrested for non compliance 2 months prior to his trial, his public defender refused to call witness on his behalf. and he was convited to 44 months, she was never charged for violation of drug court rules, they should have convicted her for the charges she had that put her in drug court in the first place. ut the jury convicted him on her testamony, some system we have

Posted by: patty | Feb 5, 2005 4:12:58 AM

fighting 18 922 G (1) no bail no court date nothing

Posted by: murphy | Feb 5, 2005 1:26:26 PM

Hello
I need help my brother is in prison for 30 years he been in since he 18 years he now 34 and hope I can prove the courts wrong on their decision please help me I think its is fair.

Posted by: Lisa | Feb 9, 2005 11:55:19 PM

I need help we are a family that never knew about the police or the laws and now my brother is lock up and noone will help. I live in VA and they sentence alot of guys with federal time of 30 years. I was wondering if this United States Vs. Booker would help him dealing with jury verdict would it apply to him if found guilty by a juor of 70 grams but sentence for 2,187 grams because of relavant conduct his been lock up for 15 years I don't know what to do I called FAMM, Federal Courts noone cares. Please help me! Lisa Younger Please excuse the grammar THANKS FOR TAKING THE TIME TO READ PLEASE RESOND ASAP

Posted by: Lisa Younger | Feb 10, 2005 12:13:36 AM

MY FIANCE' IS IN A HOLDING CELL WAITING FOR SENTENCING IN SEPTEMBER 2006. HE IS FACING A MINIMUM MANDATORY SENTENCE OF LIFE FOR POSSESSION OF OVER 50 GRAMS OF CRACK WITH INTENT TO DISTRIBUTE. MYSELF AND OUR 2 KIDS ARE STRUGGLING TO STAY ABOVE WATER AFTER HAVING LOST MY JOB, HOUSE, AND CAR BEHIND THIS. WE CAN NOT AFFORD A PRIVATE ATTORNEY SO HE HAS A APPOINTED PUBLIC DEFENDER FOR WHOM ONLY HAS ABOUT 2 YEARS EXPERIENCE IN THIS TYPE OF FEDERAL DRUG CASE. WHAT ADVISE OR AVENUES CAN WE TAKE IN FINDING FREE AND PROPER REPRESENTATION FOR HIM BEFORE SENTENCING? HIS PUBLIC DEFENDER HAS ALREADY ADVISED HIM TO CHANGE HIS PLEA TO GUILTY IN HOPES OF REDUCING HIS SENTENCE SO HE DID.

Posted by: DEE | Aug 10, 2006 12:09:38 PM

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