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March 4, 2010

Eighth Circuit affirms long sentence based on "hypothetical criminal-history points" and dismissed murder charge

The Eighth Circuit has a very interesting sentencing ruling today in United States v. Azure, No. 08-3663 (8th Cir. Mar. 4, 2010) (available here).  The relatively short opinion covers a relatively large number of sentencing issues, and here is how it starts:
On remand from a prior appeal, the district court sentenced Tamara Azure (“Wind”) to 180 months of imprisonment on two counts of assault with a dangerous weapon in violation of 18 U.S.C. §§ 1153 and 113(a)(3).  In doing so, the district court departed upwardly based on an under-representative criminal history.  The court also made an express factual finding that Wind committed an execution-style murder on a different occasion, as alleged in a dismissed count. The court reached its overall sentence by imposing consecutive sentences on the two counts.

March 4, 2010 at 02:12 PM | Permalink


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I haven't read the opinion. But my first thought is: would that sentence be "reasonable" if the Court did not make the "express factual finding"? If not, then it's an as-applied 6th Amend. violation.

Posted by: DEJ | Mar 4, 2010 2:47:41 PM

funny i thought the supreme court just ruled recently that fact finding was a job for the JURY!

Posted by: rodsmith3510 | Mar 4, 2010 7:20:03 PM


The Supreme Court recently ruled that fact finding which increased the legally available sentence is a job for the jury. Don't inaccurately over-simplify the Court's holding, because doing so takes away from any merit to your views.

Posted by: DEJ | Mar 4, 2010 10:11:04 PM

not realy. he was using a so-called fact from a charge the jury aquited him of! therefore NOT-guilty! so by what LEGAL justifican can he now use a charge that he was found not guilty on to enhance the ones he was found guilty for!


Posted by: rodsmith3510 | Mar 5, 2010 1:41:39 PM

I agree with you, rodsmith, that it defeats the entire point of a jury. But your statement about what the Supreme Court recently held was nevertheless inaccurate. I was just trying to help so that, when trying to make points, you can do so in a more intelligent manner.

Again, I have no opinion on the correctness of the holding. But as far as what "legal justification" there is to use acquitted conduct, there is (unfortunately) plenty. While I don't agree with it as a matter of policy (or legal analysis), many courts have upheld the use of acquitted conduct at sentencing. So if you're going to attack the practice, my only point is that you should not SOLELY rest on the Supreme Court's recent decisions on judicial fact-finding.

Posted by: DEJ | Mar 5, 2010 2:03:46 PM

guess i will have to give you that one. of course that brings me back to my old thoughts. it's long past time to kill off all the lawyers and judges. They are the same crimials who have allowed the ideal of "civil" law that can take someone found NOT GUILTY in a crimal trial and find them GUILTY in a civil one for the very thing the criminal trial found them not guilty of!

this is the same stupidity!

Posted by: rodsmith | Mar 7, 2010 2:49:45 PM

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