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November 21, 2005

Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes

The Seventh Circuit today in US v. Welch, No. 03-3638 (7th Cir. Nov. 21, 2005) (accessible here) demonstrates yet again that the principles of Blakely have been undermined by the Booker remedy.  In Welch, the district court nearly doubled the defendant's sentence based on its "finding, by a preponderance of the evidence, that the defendant had committed four other bank robberies" that apparently were never formally charged.  The Seventh Circuit in Welch walks through all the post-Booker rules to conclude that there is no problem with a judge's decision to greatly enhance a defendant's sentence based on that judge's conclusion, by the preponderance of the evidence, that the defendant committed other offenses that apparently were never the subject of indictment or subject to true adversarial testing.

Interestingly, the Seventh Circuit in Welch quotes from the district court's "conviction" of the defendant on four crimes that it seems were never indicted or subject to adversarial testing:

After reviewing all of the evidence, this Court finds that the Government has put forth sufficient "reliable" evidence to show by a preponderance of the evidence that Welch committed the three bank robberies at Tech Federal on February 7, March 25[,] and May 20, 1997, and the robbery of the Bank of Homewood on July 8, 1997.  While no one piece of evidence clearly implicates Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance to this Court is the black jacket found at his residence, the yellow hard hat, the statement to Austin, and the bank surveillance photos.  Moreover, even discrediting the identification by Judith Welch and the teller, this Court finds that their identification of Welch is sound.  After closely observing Welch at the trial and the sentencing hearing and closely comparing him to the bank surveillance tapes, this Court firmly believes that Welch is the robber in those photographs.

I have to think that the Founders who had a role in ensuring that trial by jury was guaranteed in both Section 2 of Article III and in the Sixth Amendment are right now rolling over in their graves.  (Of course, these Founders likely rolled over a couple times after the Supreme Court in Watts held that acquitted conduct could be the basis for a mandatory sentence enhancement.  But if the spirits of these Founders had some new hope after Apprendi and Blakely came along, Booker and Welch surely having them spinning in their graves again.)

November 21, 2005 at 01:55 PM | Permalink


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This is an outrage. What ever happen to the Constitution? I've appeared before the Judge today on a limited remand ( US v Ameline)from the Ninth circuit. The Judge warned me that if I were to pursue the matter any further, he will consider the advisory portion of the Ameline case and will give me more time. I've already served my sentence. The Judge indicated to me that I was pain in his ###. So, if I want to utilized the Constitution, I will get punish.

I felt that I was sentenced incorrectly and wanted to prove my case. He will not reasoned and refused to listen. My sentence was based on loss. My argument is simply this. If the Court and the Government feel that I should be responsible for duplicates losses, losses that were not associated with me and losses that occurred before my involement. Then, I am held responsible. However, if the Court believe that I have a right to challange the Government erroneous loss report and prove my case. Then I am prepared to do so. Although, the burden is on the Government, I am willing to assume the burden. The Judge was very adament. If I were to pursue the matter, he will give me more time.

Posted by: Anonymous | Nov 21, 2005 3:39:18 PM

Prof. B,

I understand your concern about the SPIRIT of Blakely as you see it. But remember the actual REASONING of Blakely. Blakely explicitly endorsed Williams. Without any guidelines, the judge is free to find any and all facts to increase the sentence up to the max set by Congress. So, I disagree with you. I do not believe that the "principles of Blakely have been undermined by the Booker remedy." Booker is a faithful application of Blakely (although one can question the interpretation of the SRA as a matter of statutory construction). The Booker option was clearly on the table in Justice Scalia's Blakely opinion. It may not be good policy but it is also no surprise.

Posted by: Hmmm | Nov 21, 2005 4:34:28 PM

Hmmm, though I do not want to get into a debate about the distinction between principles and spirit, I do want to suggest that both the principles and spirit of Blakely suggest there is something unfair when a "defendant, with no warning in either his indictment or plea ... see[s] 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." Blakely slip op. at 15-16.

Policy concerns aside, does a decision like Welch make you proud? Do you think it reflects the principles of due process and adversarial justice and limits on government power that we often claim to respect? Because of decisions like Welch, I often feel as though I need to cross my fingers when I tell my first-year law students that the burden of proof in criminal cases is beyond a reasonable doubt. And that makes me sad.

Posted by: Doug B. | Nov 21, 2005 4:51:45 PM

This case doesn't even comport with Booker, let alone the Constitution.

As you know, Booker (and Shepard) reaffirm Almendarez-Torres as good law. Almendarez-Torres carves out a prior-conviction exception to the rule that all facts that alter the statutory maximum must be found by the jury. Even if the district court's findings as to Welch somehow fell within this exception, which the Seventh Circuit seems to assume, the Seventh Circut's holding violates the rationale behind the exception. A judge is permitted to increase a sentence based on criminal history only because, for prior crimes, the defendant has already enjoyed the constitutional protections that go along with a criminal conviction or plea. Sending criminal history to a jury therefore would be redundant -- double due process. Welch's four additional bank robberies and the obstruction of justice "charge," however, had not been previously decided by a jury and therefore had not been previously subject to Fifth and Sixth Amendment testing. Nevertheless, the Seventh Circuit permitted Welch's sentence to be substantially increased based on a finding, supported by a mere prepondernace of the evidence, made by a judge, that Welch had in fact committed these crimes. Under Welch, then, so long as the USA charges and proves one crime to a jury, all other unconvicted crimes may be found by the judge. That can't possibly be.

Posted by: Brian J. Paul | Nov 21, 2005 5:20:19 PM

Looks like a good case to apply for cert on.

Posted by: ohwilleke | Nov 21, 2005 10:44:12 PM

Sorry, but when applied as written, it appears Booker is not (as one District judge recently stated in court) a defendant friendly case. As posted by Hmmm, the reality is that in an advisory guideline world, there is no limit to what kind of sentence a judge can impose as long as the sentence is "reasonable" whatever that may mean. The judge here, had this case gone to sentencing post-Booker in the fisrt place, could have simply applied the advisory guidelines as he saw fit, in consideration with 3553(a)(1-7), and sentenced the defendant to as much as the statutory maximum if such a sentence was reasonable under the circumstances. Based on this defendant's apparent horendous criminal history, it looks like (to me anyway) his sentence was extremely generous. I'm "sad" this judge chose to be so lenient.

Posted by: RLS | Nov 22, 2005 12:01:18 AM

To RLS. You should get all the facts before you make such a mean statement. Welch had 6 (L-III) criminal history pts and 3 of those pts were traffic violations (Driving on suspended lic). 2 pts for violation of probation (another issue) and 12 pts added for 4 uncharged crimes which total 20 pts (VI). There were no evidence against Welch and in 1997, 2 of the uncharged crimes were tossed by a judge for that reason. Five years later (2002) with statute of limitation expired on 4 uncharged crimes, Welch was charged with one bank robbery and still maintained his innocence. As for ID- no fingerprint, handwriting did not matched, not picked out of line up by dozen witnesses and tellers. Out of 6/7 tellers one picked Welch after his photo was shown to her. The teller who testified did not ID Welch and said she could not. The witness who spoke with the robber said he could not ID Welch, photo expert test inconclusive. The Pros. main witness was Welch's ex-wife (bitter divorce). Steve was forced by incarceration to testify against Welch and lied 3x on the stand, also given immunity. In the federal system, as you may not know, your constitutional rights can be violated and anyone can be found guilty and imprisoned for years with no evidence and no justice. I am sad to see you thought the judge was lenient. Let's hope it never happens to you or one of your family members. Welch is a very loving husband, father and friend and we are devasted by this injustice.

Posted by: Yvonne Welch | Nov 22, 2005 2:05:07 AM

The word is "devastated" by our loss and injustice.

Posted by: Welch | Nov 22, 2005 2:14:59 AM

I apologize for repeating myself from previous posts on this blog, but practitioners have got to keep pushing the Grand Jury Clause! Welch should not have had to answer unindicted allegations. Period. Blakely didn't address the Grand Jury Clause because it was a State case (no incorporation), and the Supreme Court did not address the Fifth Amendment in Booker. Therefore, practictioners in federal cases should continue to object to having to answer unindicted allegations at sentencing under the Fifth Amendment. This issue has not been worked out, even at the Court of Appeals level, and we should definitely keep pushing this argument until it's resolved.



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