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May 25, 2005

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."

May 25, 2005 at 08:37 PM | Permalink


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Just FYI, you might want to know that Judge Marbley's first name is "Algenon," without the "r".

Thanks as usual for an excellent blog - no offense of course intended by the correction.

Posted by: Anonymous Clerk | May 25, 2005 10:32:32 PM

Thanks, Clerk. I was so worried about spelling Marbley right, I forgot about the first name. In any event, the problem is now fixed. Thanks for the head's up.

Posted by: Doug B. | May 26, 2005 10:18:18 AM

If you have to serve time for it, why isn't the standard BRD rather than by a prepondence? Isn't that what is unconstitutional? Why did the SC leave that as an option rather than declaring "relevant conduct" unconstitutional?

Both Apprendi and Booker state that you either have to plead guilty or be found guilty but the SC is not acknowledging that. And people who have had time added for relevant conduct are still sitting in prison with no hope for relief.

What am I missing here?

Posted by: ST | May 26, 2005 2:38:48 PM

From what I can see, you're missing nothing. You're exactly right

Posted by: hanel | May 27, 2005 8:32:04 AM

As I understand it: (1) Anything which affects the maximum or minimum sentence must be BRD. If jury trial is chosen, it must be found by the jury. (2) Judges have discretion within the maximum and minimum, reviewed for reasonableness. (3) A Guidelines sentence is presumptively reasonable. So why are we still conducting sentencing mini-trials over enhancements? The facts proven at trial are usually sufficient for a plenty juicy sentencing range, so are prosecutors still pushing for higher sentences because (1) the AG's memo is still in place or (2) they really were convicting on the easiest charge and sentencing on the worst charge or (3) something else?

Posted by: law junkie | May 27, 2005 10:34:23 AM

An enhancement for relevant conduct is BS. Relevant conduct is the same as conspiracy and one should not be double sentenced. If there is no conspiracy there can't be relevant conduct.
Another BS enhancement is "supervisor"

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