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July 2, 2005

Great Harris test case from the 7th Circuit

In prior posts here and here, I have highlighted that Justice O'Connor was a key vote in the 5-4 decision in 2002 Harris decision which declared that judges could still find facts to support the application of mandatory minimum sentences.  If Justice O'Connor's replacement is truly in the mold of Justice Thomas (who authored a potent dissent in Harris), the Harris "mandatory minimum" exception to the Apprendi-Blakely rule gets even shakier.  (Recall that Harris is already shaky because of Justice Breyer's peculiar concurrence.)

Yesterday, the Seventh Circuit just happened to render a decision in a case which might be an especially good test for the continued vitality of Harris.  In US v. Duncan, No. 04-1916 (7th Cir. July 1, 2005) (available here), the defendant was convicted at trial of numerous crimes related to an armed bank robbery, and his applicable guideline sentence was 97-121 months.  But, as a result of a 924(c) count, and the judge's preponderance determination (aided by a presentence report) that the gun used in the robbery qualified as a machine gun, the district court was obliged by statute to impose not less than 30 years of additional imprisonment.  In Duncan, the defendant complained that his Sixth Amendment rights were violated by this judicial factfinding which added 30 years to his sentence (functionally tripling his sentence), but the Seventh Circuit concluded that Harris foreclosed this claim and that only the Supreme Court could declare Harris overruled.

The facts in Duncan called to mind Justice Scalia's expressed concern in Blakely about a defendant seeing "his maximum potential sentence balloon ... based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong."  Indeed, arguably the 7th Circuit might have concluded in Duncan that the defendant's sentence violated Blakely notwithstanding Harris (as a Minnesota court has held in a seemingly analogous situation).  And, even if Duncan is sound in light of Harris, the case involves a notable set of facts that could allow the Supreme Court (with its eventual new member) to review Harris in light of what Blakely and Booker have said.

July 2, 2005 at 12:44 PM | Permalink


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hi, its wonderfull what you are doing. I wish to term up or help in any way. I just finished OND. in Accountancy

Posted by: Egwuagu Onyeka | Jul 21, 2005 3:44:25 PM

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