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April 9, 2009

Eighth Circuit formally rejects heightened burden of proof in modern federal sentencing

The Eighth Circuit today in US v. Villareal-Amarillas, No. 07-3616 (8th Cir. April 9, 2009) (availabe here), formally rejects a defendant's claim that a higher burden of proof should apply to fact-finding that significantly increase applicable guideline sentencing ranges.  Here is the case's unofficial summary from the court's website:

Due process clause does not require the government to prove by clear and convincing evidence facts that produce a substantial increase in the advisory guidelines range, and such facts need only be proven by a preponderance of the evidence; prior cases which suggest that such facts need to be proven by clear and convincing evidence when they have an extremely disproportionate effect on a defendant's sentence rest on a misinterpretation of McMillian v. Pennsylvania, 477 U.S. 79 (1986), and the court joins with other circuits in specifically rejecting this interpretation; the district court properly considered the 3553(a) factors and was not required to mechanically recite each factor at sentencing.

Interestingly, this opinion goes out of its way to throw dirt on the circuit's pre-Booker rulings in this arena in the course of going on to hold that "[a]fter Booker, a due process challenge to findings of fact that impact the defendant’s advisory guidelines sentencing range 'is cognizable more properly as a challenge to the reasonableness of his sentence.'"

April 9, 2009 at 01:39 PM | Permalink


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Very curious that, although this is not an en banc decision, Judge Loken has no qualms about overruling prior panel decisions -- this stands in sharp contrast to his anger when other members of the court concluded that the Supreme Court's decision in Begay had rejected the circuit's prior position on whether car theft and tampering constituted violent felonies under the armed career criminal act.

Posted by: dyn | Apr 10, 2009 9:30:24 AM

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