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May 23, 2007

Sixth Circuit rejects challenges to unconvicted conduct enhancement

In a lengthy opinion covering lots of issues, the Sixth Circuit today in US v. Brika, No. 05-4537 (6th Cir. May 23, 2007) (available here) rejects various constitutional and Booker challenges to a sentence significantly enhanced by the "the district court's consideration of conduct on which a jury could not agree."  Here are some key snippets from the opinion:

Brika first alleges that the district court's consideration at sentencing of conduct on which a jury could not agree violated the Sixth Amendment. We believe that this argument is foreclosed by Watts v. United States, 519 U.S. 148, 157 (1997)....  If district courts at sentencing may employ conduct on which a jury rendered a judgment of acquittal using only a preponderance-of-the-evidence standard, then surely they may employ conduct on which a jury could not agree using the same standard....

We see no logical contradiction between Watts and Booker. It is clear after Booker that district courts may still find facts at sentencing by a preponderance of the evidence....  Booker permits district courts to find facts at sentencing.  Watts discusses only the standard of proof that applies when that fact-finding takes place.  There is no contradiction between them. Accordingly, Watts controls here. Until the Supreme Court holds differently, a jury's inability to reach a verdict on a particular count under a reasonable-doubt standard does not require district courts to employ anything other than a preponderance standard at sentencing.

The Brika opinion makes a number of other important points about post-Booker sentencing realities that may or may not get addressed by the Supreme Court in Claiborne or Rita.  Brika thus highlights another array of issues still festering in the lower courts after Blakely and Booker that the Justices, if they are genuinely interested in helping lower courts consistently apply Booker, perhaps should reach out to address.

May 23, 2007 at 10:13 AM | Permalink


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Why are these cases not being held for Claiborne and Rita? Did the circuit judges not read the oral argument transcript? Did they not read the battle between Ginsburg and Alito in Cunningham? Did they not see that the Court in Rita/Claiborne might be ready to reach out and "overrule" Watts?

Posted by: Aaron | May 23, 2007 3:35:31 PM

Practically all of the circuits are regularly putting out decisions that would be vacated if Rita and/or Claiborne are decided for the petitioners. I sincerely hope that all of those defendants are filing prophylactic cert. petitions, as they would get a GVR "for free" if Rita/Claiborne come out the right way.

I think there's zero probability that the Court will expressly overrule Watts this term. Neither Claiborne nor Rita squarely presented that question. Moreover, Watts was decided 7-2, and it's highly doubtful that changes to the Court's composition provide the votes to overrule it.

Posted by: Marc Shepherd | May 24, 2007 9:52:14 AM

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