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February 5, 2007

Major Third Circuit ruling on sentencing burdens

I am about to run into a faculty workshop, but two readers sent me advanced word that the Third Circuit has released its major en banc ruling on sentencing burdens of proof in Grier.  Here's the early report I received on the 145-page (!) opinion:

The Grier vote is 9-2 affirming: for sentencing enhancements, including for a "separate offense," preponderance of evidence is sufficient.  I think you may find Judge Ambro's concurrence in the judgment and Judge McKee's dissent especially thoughtful....  The Court en banc backed off the panel majority's overruling US v. Kikumura (fn. 8)....

Here is how the opinion in Grier (which I cannot yet find on can now be found at this link on the Third Circuit's website) begins:

The Supreme Court held in United States v. Booker, 543 U.S. 220 (2005), that facts relevant to the advisory United States Sentencing Guidelines need not be submitted to a jury.  We now confirm that these facts likewise do not require proof beyond a reasonable doubt.

February 5, 2007 at 12:07 PM | Permalink

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http://www.ca3.uscourts.gov/opinarch/051698p1.pdf

Posted by: | Feb 5, 2007 12:31:29 PM

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