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October 28, 2008

A perfect Sixth Amendment test case for SCOTUS?

In separate opinions in recent years, Justice Stevens has suggested that he might like to overrule the Harris decision allowing judges to find facts triggering mandatory minimum sentence, and Justices Scalia and Thomas have indicated in various ways their concerns about the preservation of Sixth Amendment principles in the application of the Booker remedy.  In addition, the entire Court has seemed none too impressed with the Eighth Circuit's work in crack sentencing cases.

For all these reasons (and a few others), I view the Eighth Circuit's work today in US v. Webb, No. 08-1331 (8th Cir. Oct. 28, 2008) (available here) has some real cert potential.  The first paragraph of the Webb opinion reveals why the case could be of great interest to any Justice still serious about the reach and application of Sixth Amendment jury trial rights at sentencing:

Micaiah Rey and Geno Webb were convicted of conspiracy to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846.  In response to an interrogatory, the jury found beyond a reasonable doubt that the conspiracy involved more than five but less than fifty grams of cocaine base.  For sentencing purposes, the district court determined by a preponderance of the evidence that the conspiracy involved more than fifty but less than 150 grams of cocaine base.  Accordingly, Rey was sentenced to 240 months’ imprisonment, and Webb was sentenced to 130 months’ imprisonment.  Rey and Webb appeal, contending that their sentences must be based on the amount of drugs found by the jury and not the amount found by the judge.  We affirm.

October 28, 2008 at 11:35 AM | Permalink


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I agree with you Doug and was going to forward you the case had you not posted it. Thanks for doing so.

Posted by: Alex | Oct 28, 2008 1:15:31 PM

I just can't feel passionate about this case. I understand the issue and I agree that the judge erred. But I am also sympathetic to the 8th's perspective that the error doesn't change anything. So this case goes to SCOTUS, SCOTUS overturns and remands for new sentencing, and the perp is going to get the exact same sentence he got before. It seems a lot of lawyering for nothing.

Posted by: Daniel | Oct 28, 2008 3:11:01 PM

If courts can sentence based on acquitted conduct, then they can do this.

I'd love to see the law changed - it should be changed because it trivializes the jury's express findings (or non-findings, if you want to be more specific), in order to punish someone more harshly. I see no way to fix this without also ending the use of acquitted conduct.

Posted by: BruceM | Oct 29, 2008 12:15:18 PM

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