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December 9, 2005

Eighth Circuit speaks to post-Booker reliance on hearsay at sentencing

I see on this official opinion page that the Eighth Circuit has released another large bunch of criminal case rulings today.  As always, I hope readers might point me to any particularly noteworthy sentencing aspects of these decisions.  One case that caught my eye was US v. Brown, No. 05-1387 (8th Cir. Dec. 9, 2005) (available here), in which the court had this to say about the use of hearsay at sentencing:

We reject Brown's argument that in light of Booker, the district court erred in relying on hearsay testimony in support of the § 2K2.1(b)(5) enhancement.  "In determining the appropriate guidelines sentencing range to be considered as a factor under § 3553(a), we see nothing in Booker that would require the court to determine the sentence in any manner other than the way the sentence would have been determined pre-Booker." United States v. Haack, 403 F.3d 997, 1003 (8th Cir. 2005). Specifically, Booker "provide[s] no basis to question prior . . . decisions that expressly approved the consideration of out-of-court statements at sentencing." United States v. Martinez, 413 F.3d 239, 243 (2d Cir. 2005); see also United States v. Luciano, 414 F.3d 174, 179 (1st Cir 2005) (Booker did not alter "view that there is no Sixth Amendment right to confront witnesses during the sentencing phase").

We also note that courts have held that Crawford v. Washington, 541 U.S. 36 (2004), in which the Supreme Court held that admission of testimonial hearsay at trial violates the Confrontation Clause unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine the declarant, "does not alter the pre- Crawford law that the admission of hearsay testimony at sentencing does not violate confrontation rights."  United States v. Chau, 426 F.3d 1318, 1323 (11th Cir. 2005)....

In addition, contrary to Brown's standard-of-proof argument, "[n]othing in Booker suggests that sentencing judges are required to find sentence-enhancing facts beyond a reasonable doubt under the advisory Guidelines regime." United States v. Pirani, 406 F.3d 543, 551 n.4 (8th Cir.) (en banc), cert. denied, 126 S. Ct. 266 (2005).

December 9, 2005 at 12:08 PM | Permalink

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