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May 5, 2010

Fourth Circuit uses Booker to support rejection of effort to extend Shepard

The Fourth Circuit has an interesting discussion of Booker and its progeny today in US v. Dean, No. 08-4439 (4th Cir. May 5, 2010) (available here), in the course of rejecting a defendant's complaint about judicial fact-finding in the course of applying a career offender enhancement.  Here is how the opinion begins:

Antonio Bernard Dean challenges the imposition of a "career offender" sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were "separated by an intervening arrest."  See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).

In United States v. Booker, 543 U.S. 220 (2005), and its progeny, the Supreme Court intended two things.  First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory.  Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence.  Dean’s contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.

May 5, 2010 at 10:57 PM | Permalink


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Wonder if this one will get taken up by the Supreme Court. Among other weird things, the court incorrectly states that the Sixth Amendment has no application in our post-Booker world, even though there are as applied challenges. Indeed, given that judicial fact finding likely increased this defendant's setence by about 8 years, I think he would have a pretty good argument.

The court also claims that fact finding about this prior incident is no big deal because courts make lots of factual findings under the Guidelines. But the facts courts typically find go to the facts surroudning the defendant's current offense -- not about offenses that could have occured years, or even decades ago.

I suspect that this case didn't receive great briefing on these issues and the court just went off on its own to make new law.

Posted by: FPD | May 6, 2010 11:51:57 AM

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