Another potent district court Booker opinion (from my backyard)

In an opinion coming from my part of the world, US District Judge Algenon Marbley in US v. Coleman, No. 2:02-cr-00130 (S.D. Ohio May 24, 2005) (available for download below), addresses an array of important post-Booker issues, most notably relating to the burden of proof for enhancements and the status of so-called "acquitted conduct."  This is another must-read, which thoughtfully draws on a number of prior must-reads on these issues.

Download coleman_sentencing_memorandum.pdf

UPDATE: Having now had a bit more time to review the opinion, I should stress that Coleman covers the extant post-Booker caselaw on burden-of-proof issues as thoroughly as any decision I have seen.  And here is Judge Marbley's main conclusion on this issue:

This Court believes that all enhancements should be determined by beyond a reasonable doubt, but, in light of [Sixth Circuit decision] Yagar's dicta and the multi-circuit consensus, the Court will continue to review enhancements, with the exception of those relating to acquitted conduct, by a preponderance of the evidence.

At sentencing, acquitted conduct should always be considered using a reasonable doubt standard; otherwise, a defendant's Sixth Amendment right to a jury trial is eviscerated.... This Court recognizes its power to enhance Defendants' sentence for uncharged conduct, as such conduct was neither authorized nor unauthorized by the jury, but concludes that considering acquitted conduct would disregard completely the jury's role in determining guilt and innocence....

Additionally, consideration of acquitted conduct skews the criminal justice system's power differential too much in the prosecution's favor.... This "second bite at the apple" allows the government to perfect its case and ready it for re-litigation at the sentencing "mini-trial."