More about beyond a reasonable doubt at sentencing

When speaking to lawyers in Wisconsin last week (background here and here), there was a lot of talk about the idea that, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  (Some of my previous posts on this topic are here and here.)

Steve Sady at the Ninth Circuit Blog has additional coverage of this important topic in this post, which discusses and links to this detailed and thoughtful letter brief elaborating the argument for BRD as the applicable proof standard.  In addition, the Ninth Circuit Blog also has this extended post discussing in detail Judge Batallion's ruling in Huerta-Rodriguez which provides a due process account for continuing to apply a BRD standard post-Booker to federal sentencing (basics here). 

In addition to noting these materials, I want to spotlight some additional points which, I believe, strongly support the notion that, post-Booker, district judges at least have discretion to utilize the beyond a reasonable doubt standard when resolving disputed facts at federal sentencing:

1.  The Supreme Court case which established the reasonable doubt standard as derived from the Fifth Amendment's Due Process Clause, In re Winship, 397 U.S. 358 (1970), addressed proof standards in a setting (juvenile proceedings) in which the Sixth Amendment's jury trial right is not applicable.  In other words, Winship was about assuring that judges apply the heighten proof standard in order to provide "concrete substance for the presumption of innocence -- that bedrock axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." Id. at 363.

2. The merits majority in Booker seemed to go out of its way to limit the reach and meaning of US v. Watts, 519 US 148 (1997), a case which seems to countenance the preponderance standard at sentencing for punishment-enhancing facts.  Here is how Justice Stevens in footnote 4 of the Booker merits majority describes the Court's work in Watts:  "Watts ... presented a very narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument. It is unsurprising that we failed to consider fully the issues presented to us...."

3. Neither Congress nor the US Sentencing Commission has expressly provided for preponderance to serve as the proof standard at federal sentencing.  The Sentencing Reform Act does not speak to this issue at all.  The guidelines in commentary to 6A1.3 state that "The Commission believes that use of a preponderance of the evidence standard is appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case."  However, this guideline has not been officially re-examined since Jones, Apprendi, Blakely and Booker came on the scene, and the same commentary also stresses that, in each case, the "sentencing court must determine the appropriate procedure in light of the nature of the dispute, its relevance to the sentencing determination, and applicable case law."