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April 20, 2005

On third thought from the Third Circuit

Last week I noted here that the Third Circuit in its (unpublished) King decision dropped a footnote with (intriguing and questionable) Booker dicta indicating that post-Booker enhancements "must rely only upon conduct admitted by the defendant or found by the fact finder based upon proof beyond a reasonable doubt."  I was further intrigued, as detailed here, when the Third Circuit subsequently amended that footnote, but merely to fix a typo.

Giving this matter now a third thought, it seems that the Third Circuit is no longer comfortable with the substance of the footnote in King.  As indicated by this order, the Third Circuit has "hereby withdrawn and vacated" its opinion in King.  With King thus dethroned, it appears that the dicta in this footnote no longer reigns.

April 20, 2005 at 11:15 AM | Permalink


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Another 3rd circuit (beyond a reasonable doubt quote)

Following that decision, in response to an inquiry from this court, Spencer asked to be resentenced pursuant to Booker even though he had not originally challenged his sentence. When Spencer was originally sentenced, the attack he now makes on his sentence appeared foreclosed under United States v. Williams, 235 F.3d 858, 860-63 (3d. Cir. 2000). However, given the teachings of Booker, it is now clear that the District Court erred in enhancing Spencer's sentence under U.S.S.G. ╖ 2K2.1(b)(5) based solely upon the court's finding that Spencer possessed a gun "in connection with" another felony offense. That question was neither admitted during Spencer's change of plea colloquy, nor proven to a jury (or to a judge at a bench trial) beyond a reasonable doubt. Moreover, when Spencer was initially sentenced, the District Court understandably [*4] thought that it had to impose a sentence consistent with the appropriate guideline range. However, it is now clear that the court was free to exercise its discretion in determining a sentence and that the guideline range, though relevant, was not determinative.

Posted by: Gene | Apr 21, 2005 12:08:52 PM

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