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March 20, 2006

Eighth Circuit affirms another lengthy sentence for an uncharged murder

In his opinion for the Court in Blakely, Justice Scalia assails the notion that the Sixth Amendment could mean that a "jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge."  The problem, explains Justice Scalia, is that this "would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it...." 

If this possibility truly concerns Justice Scalia and other members of the Blakely majority, the Supreme Court ought to be interested in a cert. petition coming from today's unpublished decision by the Eighth Circuit in US v. Rashaw, No. 05-1839 (8th Cir. Mar. 20, 2006) (available here).  As detailed in the first paragraph, the Rashaw case fits Justice Scalia's description:

A jury convicted Geoffrey L. Rashaw on two counts of being a felon in possession of a firearm and one count of possessing an unregistered firearm.  At Rashaw's post-Booker sentencing, the government presented evidence that Rashaw possessed firearms in connection with a double homicide.  Based on the evidence, the district court set Rashaw's base offense level at 43 ... [which under the] sentencing guidelines set the sentence at life imprisonment.  Because statutory provisions limited the sentence on each count to ten years, however, the court sentenced Rashaw to three consecutive 120-month terms of imprisonment under U.S.S.G. § 5G1.2(d).

As the Eighth Circuit explains, "Rashaw appeals arguing the 360-month sentence is unreasonable because the district court expressly based the sentence on a finding that he had committed an unrelated, uncharged double murder."  In addition, Rashaw "argues that under United States v. Booker, 543 U.S. 220 (2005), the double murder had to be found by a jury beyond a reasonable doubt, rather than by a judge on a preponderance of the evidence."  The Eighth Circuit is unconvinced:

Because the district court applied the guidelines in an advisory manner, the court could find sentence-enhancing facts by a preponderance of the evidence....  The double murder was relevant conduct that was properly considered in deciding Rashaw's guidelines range and the factors in 18 U.S.C. § 3553(a).

So, as Justice Scalia feared, Rashaw is convicted at trial of illegal possession of firearms, and gets 30 years for uncharged murders.  But this case does not exactly fit Justice Scalia's description: the Eighth Circuit notes that "Rashaw points out the guns he possessed with respect to his sentence were not involved in the double homicide."  No problem, says the Eighth Circuit: "The § 2K2.1 enhancement for using a firearm in another felony need not be the same firearm involved in the offense of conviction."  Wow!

If Blakely's procedural rights are ever going to have any bite in an "advisory" federal sentencing system, this Rashaw case would seem to be a good vehicle for testing the courage of the Blakely five's convictions.  And I continue to wonder what Justice Alito and Chief Justice Roberts, if they share aspects of Justice Scalia's judicial philosophy, might think about cases of this sort.

Related posts on uncharged murder sentencing:

March 20, 2006 at 12:36 PM | Permalink


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Doug, it's a world gone mad. Bruce

Posted by: bruce cunningham | Mar 20, 2006 2:09:22 PM

The topper is they didn't report it.

Posted by: Robert Little | Mar 20, 2006 3:32:32 PM

and they disposed of the case in little more than 2 pages! wow.

Posted by: jon | Mar 20, 2006 4:17:44 PM

I guess it's better "reported" by Doug than reported by the Court. Thanks for making me laugh today.

Posted by: anonymous | Mar 20, 2006 4:22:26 PM

Time to get that radar detector I've always wanted. . .

Posted by: anonymous | Mar 20, 2006 4:32:21 PM

Stunning (except for the fact that this is the 8th Circuit Court of Appeals).

Posted by: ohwilleke | Mar 20, 2006 7:11:33 PM

Yes sir,

I am the defendant's eldest son, and I was wondering if you had any advice for me as to where I should start trying to fight this thing? Please contact me ASAP. It would be greatly appreciated.

Posted by: Alphonzo Glover | Jun 13, 2006 9:37:39 PM

The ladies in Pink at the congressional hearing on the war and confirmation of that strange guy should be sitting in the audience at the 8th Circuit with copies of the Declaration of Independendce and a copy of the Sixth Amdt printed on their foreheads.

Posted by: M. P. Bastian | Aug 3, 2007 9:04:23 PM

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