Intriguing safety value Booker issue from the Sixth Circuit

Blogger Sixth Circuit at Appellate Law & Practice notes here an intriguing unpublished opinion from the Sixth Circuit, US v. Ross, No. 02-6435 (6th Cir. Feb. 24, 2005) (available here), in which the government agreed to a Booker remand after the defendant contested a judge's fact-finding which made the defendant ineligible for a safety-valve reduction.  Blogger Sixth Circuit wonders why the government would make this concession, speculating "that the Government would have a strong argument for no Sixth Amendment violation under Harris and McMillan."

I think the government's concession is curious, but not for the reason spotlighted by Appellate Law & Practice.  The facts which supported Ross' 10-year mandatory minimum on a crack offense were admitted by Ross, so this case is not about fact-finding for a mandatory minimum.  Rather, the case turned on whether the judge could find that violence or a firearm was associated with that crack offense so as to make Ross ineligible for a safety-valve reduction.  But this fact-finding would seem technically to be about potential mitigating facts (the absence of violence or a firearm), not aggravating facts, so it would seem to be Blakely/Booker permissible. In the end, then, the case actually spotlights some of the sophistry that may surround distinguishing judicial fact-finding of aggravating facts and mitigating facts.