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.