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September 3, 2008

The remaining circuit split over due process burden-of-proof requirements

The Eighth Circuit decision today in US v. Garth, No. 07-2330 (8th Cir. Sept. 3, 2008) (available here), highlights in this footnote that there is still a split within the circuit over whether, even after Booker made the guidelines advisory, due process requires certain sentencing facts to be proven by a standard of proof higher than merely a preponderance of the evidence:

The Third and Seventh Circuits have held that by rendering the Guidelines advisory, the [Supreme] Court has remedied any due process violation that occurs when sentencing facts found by a preponderance of the evidence are used to calculate an advisory Guidelines’ range that causes an extreme increase in the length of the defendant’s sentence.  United States v. Fisher, 502 F.3d 293, 308 (3d Cir. 2007); United States v. Reuter, 463 F.3d 792, 793 (7th Cir. 2006).  We appear to have summarily dismissed the argument that the tail can no longer wag the dog now that the the Guidelines are advisory. United States v. Archuleta, 412 F.3d 1003, 1007 (8th Cir. 2005) (“Nothing in Booker changes the interpretation of McMillan in our post-Apprendi cases.”).  The Ninth Circuit agrees with our post-Booker conclusion and continues to apply a several factor test to determine whether sentencing facts had an “extremely disproportionate” effect on a sentence. United States v. Staten, 466 F.3d 708, 720 (9th Cir. 2006).

September 3, 2008 at 12:03 PM | Permalink


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Given that SCOTUS refused to leave the guidelines mandatory by requiring a jury finding BRD I have a hard time seeing why such an issue was even raised.

I do have a slight disquiet about letting the agents testify about what a third party related in regard to the origin of documents. And if the origin of the documents is questionable then the contents may become less important. Perhaps that issue wasn't properly preserved.

All totalled however this seems like an entirely unremarkable decesion.

I would hope the sort of circumstaces contemplated by a heightened standard would be the drug trafficing conspiracy where a unproved murder was then used as part of the sentencing.

Posted by: Soronel HaetirSoro | Sep 3, 2008 4:32:50 PM

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