Ninth Circuit adds nuance to post-Booker burdens of proof

Post-Booker circuit jurisprudence, like comedy, is all about timing.  The day after the Third Circuit does some rote work on burdens of proof for guideline calculations in Grier (basics here, commentary here), the Ninth Circuit today stirs up the pot with US v. Staten, No. 05-30055 (9th Cir. June 7, 2006) (available here).  Here is perhaps the single most critical sentence in Staten:

We agree with the government that the clear and convincing standard still obtains for an enhancement with an extremely disproportionate effect, even though the enhancement now results in the calculation of an advisory rather than a mandatory Guidelines sentence.

Among the (funny?) aspects of the timing of Staten, the unanimous Ninth Circuit ruling relies heavily on the late Judge Becker's work for the Third Circuit in Kikumura.  As noted here, the split Third Circuit panel in Grier yesterday (gratuitously) declared that Blakely and Booker call for overruling the the Kikumura decision.

This is another key line in Staten that surely will be appearing in many defense sentencing briefs in the weeks and months ahead: "As the concern with accuracy remains critical, so does the concern that enhancements having a drastic impact be determined with particular accuracy."  For example, I think Jamie Olis' attorneys ought to make this their mantra as they go about recalculating applicable loss amounts in his upcoming resentencing proceedings.