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June 19, 2005

Interesting district court perspective on jury factfinding

In a recent decision in US v. Schuler, 2005 WL 1412956 (D. Wyo. June 16, 2005), US District Judge Clarence Brimmer explained his view that jury factfinding for sentencing purposes is still permissible in the wake of Booker.  In Schuler, the court, in a post-Booker trial, had the jury make "specific findings on the special verdict form regarding facts that may affect sentencing."  The defendant, in post-trial motions, claimed, inter alia, that the "sentencing enhancements included on the special verdict form were unduly prejudicial."  In the course of rejecting this claim, Judge Brimmer opined on post-Booker sentencing factfinding:

[N]owhere in the Booker decision does it state that sentencing factors cannot be pleaded and proven to the jury. In fact, the Booker Court explicitly stated just the opposite. As the Tenth Circuit stated, "In Booker, the Court extended the logic of Blakely to the Federal Sentencing Guidelines, holding that the Sixth Amendment requires that '[a]ny fact (other than a prior conviction) ยทยทยท necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.'" United States v. Dazey, 403 F.3d 1147, 1174 (10th Cir. 2005) (quoting Booker, 125 S.Ct. at 756).

However, as is now well-known, the Booker Court also made it constitutional for judges to establish the sentencing factors by a preponderance of the evidence.  Booker, 125 S.Ct. at 756-64. This was accomplished by removing those parts of the Sentencing Reform Act which made the Guidelines mandatory. Id. at 756-57.  According to Defendant, this ruling mandates that judges, and judges only, decide the sentencing factors.  Defendant, however, misreads Booker and attempts to stretch the holding to an illogical conclusion. This Court is of the opinion that it is up to the District Court's discretion as how to establish the factual basis for the sentencing factors.  Thus, a District Court may either allow the jury to find sentencing factors beyond a reasonable doubt or under Booker and the new sentencing regime, a District Court may also, within the bounds of the Constitution, find the sentencing factors by a preponderance of the evidence on its own accord.

June 19, 2005 at 12:26 AM | Permalink


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