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March 12, 2005

Sentenced for three uncharged murders

In his opinion for the majority in Blakely, Justice Scalia assailed the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge."  The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene."

Though this expressed concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I discussed in this post last year the case of US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), in which a defendant in federal court was sentenced for a uncharged murder.   And today I came across this news report of a federal sentencing in which the defendant pled guilty to drug and firearm charges, but received a life sentence after the judge at sentencing found that there was clear and convincing evidence that the defendant was involved in three related killings. 

Of course, had the remedy proposed by Justices Scalia and Stevens carried the day in Booker, the imposition of a longer term based on uncharged conduct would no longer be permitted in the federal system.  But, because Justice Breyer's remedy prevailed in Booker, increasing a sentence based on such uncharged conduct is still permissible (though, now under advisory guidelines, no longer required).

March 12, 2005 at 11:11 PM | Permalink


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Thank you, Justice Breyer!

Now how do we fix his mess? You should not do time if you haven't been convicted of it.

Can't someone do something!!!! What's the remedy?

Posted by: ST | Mar 13, 2005 10:00:11 AM

The scenarios Scalia posits are not that far-fetched. To the contrary, variants of them occur with alarming frequency. In one of my cases, for example, defendants convicted of simple extortion were sentenced for several uncharged murder conspiracies found by a bare preponderance of the evidence. See United States v. Gigante, 39 F.3d 42 (2d Cir. 1994), vacated and superseded in part on denial of rehearing, 94 F.3d 53 (2d Cir. 1996). This kind of tail-wagging-dog situation remains, in my opinion, the Guidelines' principal vice. And the remedial majority opinion does nothing to rectify it.

Marc Fernich
Defense Lawyer

Posted by: Marc Fernich | Mar 13, 2005 12:03:35 PM

...and of course, these problems strongly influence a defendant's need to plead (or not). Here's the problem: Let's say that there's not evidence to convict the defendant of murder BRD, but there's at least some evidence that he's involved with the murder. But, he's a felon and he possessed the murder weapon at one time. So he's charged with felon-in-possession. And let's say (as is almost always the case) that there's irrefutable evidence to convict on felon-in-possession. So the defendant doesn't want to go down for murder (maybe even because he didn't do it) but will almost certainly be found guilty of felon-in-possession. The best that he can do is plead guilty to the gun charge and hope against hope that he can convince the judge (in a less-than-formal sentencing hearing) that there's insufficient evidence to enhance for the death. Of course, depending on his plea, if he contests the enhancement unreasonably, the government can choose to withhold acceptance of responsibility. So he might as well go to trial on the gun charge and hope for a sympathetic jury!

Hmm... tough choice. The sad thing is that justice is obstructed because the defendant is not allowed to begin the retributive process and accept his punishment for the thing that he did, but rather must fight for these enhancements that, if required to be presented to a jury, he couldn't be convicted of.

Posted by: district clerk battling boooker | Mar 14, 2005 11:07:13 AM

I don't care what they "think" he did. If they don't have enough evidence to convict and he pleads out he shouldn't do time for anything except what he pled to. Read the Sixth Amendment. It's pretty clear!

If we don't adhere to that, prosecutors might as well just send people directly to jail without court, that's effectively what they are doing now.

Posted by: ST | Mar 14, 2005 11:38:59 AM

I agree that if a person has the right to plea he or she should be allowed (Constitutional Right) Judges are suppose to listen for facts not make conclusions (on there own) or take the case personally. The system is designed to work but when Judges decide beyond the facts they ruin the system and thus you will see more individuals plea! I think we have to visit the guide lines that judges are to follow.

Posted by: Everett Lafferty | Mar 14, 2005 8:50:57 PM

Because I'm a defense attorney, this cuts somewhat across the grain but my early years were in the pre-guidelines era. When sentencing defendants upon conviction, judges considered everything in their backgrounds, good and bad. I'm not sure I see the evil in hearing evidence that a defendant killed someone, or why that's any different than hearing that he or she has been cruel to children or animals, had an angry temperment, misbehaved in school, had been an uncontrollable prisoner, etc.

For me, the pertinent issue is what standard of proof should apply and what right a defendant should have to contest facts. There's nothing sacred about a criminal conviction; it simply evinces that a given fact has been established beyond a reasonable doubt with the full panoply of constitutional protections. Are we saying that only facts established by this type of a process can be considered at sentencing? As a member of society, I wouldn't want to constrain responsible judges that much.

Posted by: Alex E. | Mar 15, 2005 10:27:41 AM

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