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March 24, 2005

District judge reads Shepard to impact post-Booker sentencing

An astute reader pointed me to a noteworthy district court decision from last week, US v. Harper, No. 1:04-CR-90, 2005 WL 646366 (ED Tex Mar. 17, 2005), which just recently appeared on-line.  Seizing upon a sentence in the Shepard majority opinion's statement that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence on any waiver of rights by the defendant," District Judge Ron Clark in Harper reads Shepard as modifying how judges can conduct post-Booker sentencing.  Here is the reasoning in Harper (which is intriguing, but I think a bit questionable):

Shepard deals specifically with an interpretation of the Armed Career Criminal Act.  However, in light of Booker/Fanfan, that is a distinction without a difference.  It seems clear that the Supreme Court has ruled that sentencing enhancements must be based upon jury findings, prior convictions, the court documents and statutory definitions pertinent to such convictions, and admissions by a defendant.  Accordingly, a sentence enhancement should not be applied in this case based upon the court's choice of which of two possible inferences may be drawn, by a preponderance of the evidence, from facts admitted by Defendant.

The recent Supreme Court rulings require that more attention be paid to the drafting of plea agreements, and to the presentation of proffers of evidence by the Government, so that facts necessary for enhancements the Government believes should be applied, are clearly established. It is difficult to argue that this is particularly onerous since, as a practical matter, the Government drafts its own proffer of evidence, and in most cases the plea agreement.  Based on the court's observation of the practice which has evolved since the decision in Booker/Fanfan, the Government is already including all facts pertinent to sentencing enhancements in plea agreements or in a written "factual basis" signed by the Defendant and defense counsel.

The one level enhancement requested by the Government in this case would have moved the fifty-seven to seventy-one month Guideline range to a range of sixty-three to seventy-eight months. The sentence imposed by the court was sixty months. The change may not seem important, in light of the actual sentence imposed. However, the issue of the proper standard of evidentiary review of sentencing facts, raised by the Government is vitally important.  In spite of the Fifth Circuit's recent decision in Mares, this court must respectfully conclude that the even more recent Supreme Court decision in Shepard, requires that sentence enhancements under the guidelines require more than inferences drawn from a preponderance of the evidence.

March 24, 2005 at 02:09 AM | Permalink


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enjoy all the post Booker views.

Posted by: John Thomas Haughton | Mar 25, 2005 10:53:46 AM

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