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August 25, 2006

More notable Booker work from the Sixth Circuit

Continuing its recent strong post-Booker work on reasonableness review, the Sixth Circuit issued a thoughtful little opinion in US v. Cruz, No. 05-6746 (6th Cir. Aug. 25, 2006) (available here).  The highlights of Cruz are captured in this final substantive paragraph:

On this record, the district court's use of the word "reasonable" in describing the sentence he wished to impose did not eclipse his thorough application of the § 3553(a) factors and his exercise of independent judgment. While we agree with the defendant that the district court should have described its duty as imposing "a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2)," 18 U.S.C. § 3553(a), we cannot agree with him that the court's reference to imposing a "reasonable" sentence under the § 3553(a) factors, as opposed to say an "appropriate," "sensible," or "fair" sentence under those factors, warrants a third sentencing hearing.  As Davis makes clear, a trial court's invocation of the word "reasonable" does not invariably plant the seeds of reversible error, and in this instance any error in describing the sentencing process in this way was harmless.

Disappointingly, yesterday in US v. Gates, No. 05-181 (6th Cir. Aug. 24, 2006) (available here) a different Sixth Circuit panel was not quite as nuanced in its approach to burdens of proof after Booker.  In Gates, the Sixth Circuit relies on pre-Blakely and pre-Booker authorities to declare that "judicial fact-finding in sentencing proceedings using a preponderance of the evidence standard post- Booker does not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by jury."  (As noted here are here, the Third Circuit is giving en banc attention to this issue.)

August 25, 2006 at 10:53 AM | Permalink


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