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May 13, 2011

Fourth Circuit crisply rejects application of Confrontation Clause at sentencing

Late yesterday the Fourth Circuit issued an interesting and thoughtful opinion in US v. Powell, No. 09-4012 (4th Cir. May 12, 2011) (available here), concerning the application of the Confrontation Clause at sentencing. Here is the start of the panel opinion and a key paragraph from the ruling:

Solomon Powell was convicted of mail fraud, wire fraud, and attempted destruction of evidence because of his business of selling merchandise over the Internet and then pocketing the money without sending along the products.  At sentencing, the district court relied on hearsay in concluding that Powell’s scheme harmed more than ten people and caused just under $200,000 in damage, subjecting him to an increased advisory Guidelines sentence.  He contends that because the Confrontation Clause applies with full force to sentencing proceedings, his sentence must be vacated.

We disagree. In accordance with our sister circuits, we conclude that the Confrontation Clause does not apply at sentencing proceedings like Powell’s.  This holding respects the traditional distinction between trial and sentencing, the sentencing court’s need to consider a wide variety of evidence in choosing an appropriate sentence, and the sentencing judge’s ability to properly evaluate that evidence.  The judgment of the district court is therefore affirmed....

If the Supreme Court had wished to extend confrontation rights to sentencing, it would hardly have done so by carefully describing those rights as protecting accused defendants during the determination of their guilt or innocence.  Moreover, even if we thought that Crawford somehow cast doubt on Williams’s rejection of confrontation-based challenges at sentencing, it is the Court’s job, not ours, to overrule its precedents, see Agostini v. Felton, 521 U.S. 203, 237–38 (1997), especially where all indicators suggest it still embraces the precedent’s basic holding, see, e.g., Pepper, 131 S. Ct. at 1239–40 (quoting extensively from Williams in describing a sentencing court’s broad evidentiary discretion).

Ever since Blakely and Crawford were first handed down in 2004, I have been hoping the Supreme Court might consider anew whether the Confrontation Clause ought to apply in modern fact-driven sentencing schemes.  But the Booker remedial opinion quickly took some of the steam out of this interesting issue, and I now doubt there are even a few SCOTUS votes to take up this issue, let alone the five votes that would be needed to chart a new path on the Confrontation Clause's application at sentencing.

May 13, 2011 at 11:16 AM | Permalink


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Doug, in NC, the Court of Appeals held that "the Confrontation Clause of the Sixth Amendment aplies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant's sentence beyond the statutory maximum."State v Hurt, 702 SE 2d 82. 2010)

We hold today that Crawford does indeed apply to evidence offered to prove sentencing facts in the Blakely context."

In line with my oft-stated position that Apprendi/Blakely has to do with conviction of crimes, not giving the jury a role to play in sentencing, I think the opinion is a little fuzzy. I don't think there is such a thing as "sentencing facts in the Blakely context." The Sixth Amendent applies because the finding of the fact is the equivalent, in my opinion, of a conviction of a greater offense.

Thought you would be interested in Hurt. Sort of right result on a ground that I believe misses the point of why the Confrontation clause applies. It applies because the def is being tried for a crime when the jury considers one aggravator.


Posted by: bruce cunningham | May 13, 2011 4:22:02 PM

This means that victims testifying about impact may not be cross examined. And, that is acceptable under the Sixth Amendment. Aside from the Sixth Amendment, there is the problem of ordinary fairness, factual accuracy, and the repute of the court. Lots of crime victims are shady, and are victimized because of their proximity to criminal activity. So all that PTSD, could the victim's alcoholism have something to do with their nervousness, rather than the beating they received 5 years earlier? Could it have more to do with the current boyfriend's violence rather than that of the defendant from long ago? No opportunity to ask.

Posted by: Supremacy Claus | May 14, 2011 7:34:59 AM

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