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June 13, 2005

Notable sentencing decision from the 6th Circuit

The Sixth Circuit got the federal sentencing week off to a running start with three notable decisions this morning: a published decision in US v. Sawyers, No. 02-5835 (6th Cir. June 13, 2005) (available here), an unpublished decision in US v. Tate, No. 03-3498 (6th Cir. June 10, 2005) (now available here), and the decision to "publish" the previously unpublished US v. Hall, No. 04-5047 (6th Cir. May 6, 2005) (available here).

Sawyers involves, inter alia, determination of criminal history and the application of the Armed Career Criminal Act, and Tate involves, inter alia, loss and restitution determinations.  Both cases result in remands for resentencing, covering a lot of ground along the way without apparently breaking too much new ground. 

Hall is now getting published presumably because, though it involves a fairly rote Booker remand, it breaks ground in rejecting the defendant's argument "that the prosecution violated her Sixth Amendment rights because the jury imposed a criminal forfeiture against her on the basis of the preponderance-of-the-evidence standard rather than the beyond-a-reasonable-doubt standard."  I previously discussed this part of the Hall ruling in this post last month, where I highlighted the court's assertion that the "absence of a statutory maximum or any sort of guidelines system indicates that forfeiture amounts to a form of indeterminate sentencing, which has never presented a Sixth Amendment problem."

Upon re-reading, I think the logic supporting the forfeiture ruling in Hall is quite debatable in the light of the Supreme Court's broad dicta in Blakely concerning proof of facts "legally essential to the punishment." But, then again, I suppose every bit of sentencing logic is debatable in the wake of Blakely and then Booker.

June 13, 2005 at 11:45 AM | Permalink


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I have raised the forfeiture issue in the Ninth Circuit in both an opening brief and a motion to stay the forfeiture below arguing 1) that it is the statutory criminal penalty that is exceeded by the the forfeiture (all the old cases state forfeiture is additional punishment) and 2) that the maximum forfeiture allowed without a jury finding is zero and so anything more requires BRD.

Posted by: Greg Silvey | Jun 13, 2005 11:54:12 AM

US v. Tate, No. 03-3498 (6th Cir. June 10, 2005)
How can I find the ruling on this case. I believe it's about loss and restitution. I'm curious

DAB: I've added the link now as of 9pm

Posted by: Anthony | Jun 13, 2005 7:29:56 PM

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