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October 5, 2012

SCOTUS grants cert to reconsider Harris

I am thankful that I am on the golf course this afternoon, and even more thankful I can blog via my smartphone about the decision by SCOTUS to grant cert to reconsider Harris.  Details to follow once back at a real computer.

UPDATE: Lyle Denniston has this lengthy post about this notable cert grant titled "Another revolution on sentencing?".  Here are excerpts:

The newly granted case is Alleyne v. United States (docket 11-9335), growing out of the robbery of a convenience store owner in Richmond, Va.  Allen R. Alleyne got eighty-four months added to his basic sentence for the robbery, on the theory that he would have known that his accomplice in the robbery would wield a gun as they carried out the robbery.  The added sentence was based upon the finding by the judge, not the jury, that Alleyne would have known about the plan to “brandish” a gun — a factor that leads to a mandatory minimum sentence beyond a basic sentence for the crime itself....

Since the Court decided the Apprendi case twelve years ago, various combinations of Justices have adhered to it, and sometimes expanded its reach.  But the Court had never extended it beyond enhancement of the maximum sentences that a legislature had laid down.  Justice Breyer, whose former leadership of the U.S. Sentencing Commission had made him at least a skeptic about Apprendi, but Alleyne’s public defender lawyers had pointed out in their new petition that Breyer had made comments in 2010 — when the Court was considering United States v. O’Brien — that the time may have come to revisit the Harris precedent.

The new petition argued: “Justice Breyer and the four dissenting Justices in Harris were correct in perceiving the logical and practical inconsistency of the plurality’s position.  A strict distinction between maximum and mandatory minimum sentences cannot be reconciled with the rule of Apprendi that the Constitution’s indictment, jury, and proof guarantees apply to all ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed.”...

In the Alleyne case, the accused was convicted of one count of robbery affecting interstate commerce, because the robbery occurred as a store manager was carrying deposits to a bank, and one count of using a gun during a crime of violence.  He received a forty-six-month sentence on the robbery charge.  The prosecutors also had charged Alleyne with brandishing a firearm during the robbery.  Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself.  The judge then imposed an added eighty-four months of sentence on top of the forty-six months — as required under the federal law that imposes a mandatory minimum sentence for brandishing a gun.

Alleyne’s lawyer at the trial had conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, the defense lawyer argued that Harris was inconsistent with Apprendi and later sentencing cases.  The judge rejected that challenge, but commented in imposing the added sentence that “I don’t like being the reverser of juries.”  The judge said that he had to countermand the jury finding that Alleyne did not brandish a gun because the Harris precedent gave him no choice.  The Justices are expected to hold argument on the Alleyne case either in January or February.

ANOTHER UPDATE:  Todd Bussert has posted the cert petition in Alleyne in this post at his Federal Prison and Post Conviction Blog.

October 5, 2012 at 03:47 PM | Permalink


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This should be an easy case. Under a limit of years authorized by a jury's verdict, the legislature should be able to tell judges "no lower than X" if the judge finds certain facts. Why is this not a problem? Well, judges are generally able to pick a sentence out of a range, and there are many things that inform the judge's determination. So there's no need to protect the jury role because the judge would be unfettered anyway--so why is it a problem if fetters are put on the judge if the judge finds the existence of certain facts.

Posted by: federalist | Oct 5, 2012 7:05:57 PM

So a jury finds a fact not true and the judge finds it true, and federalist doesn't have any problem with that. Why not? Because it makes the sentence longer and so it is good, despite the judge not wanting to be "the reverser of juries.”

Posted by: George | Oct 5, 2012 11:40:56 PM

right on George!

as I have said on the blog before, in my view, the crux of apprendi is that it prohibits bench trials for a greater offense following a jury trial for a lesser offense. What happened here is there was a jury trial of the greater offense, of which the def was acquitted and then a second trial by the judge. Almost seems like double jeopardy lurking in here.

As someone pointed out a couple days ago, crime A has a range of punishments of 0 to 10 years. crime B has a range of punishments of 5 to 10 years. Which has the more severe range of punishments? I would say B because the def is not eligible, or exposed, to a sentence less than 5

Remember, it is not the actual sentence imposed which is of significance under apprendi, it is the potential range of sentences to which the def is exposed, which matters. Our NC Supreme Court missed the distinction between sentences imposed and sentences to which the def is exposed in state v norris.


Posted by: bruce cunningham | Oct 5, 2012 11:56:44 PM

Well i take issue with this criminal statement.

"Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery, so he had to be punished for that himself."

Unless this retard of a judge can point to one case....just One! in the entire universe that shows individual now have the ability to read minds. All this proves is that he is a typical government fucktard stooge.

Plus i agree with bruce. Just how many times must the high court say "any fact that increases a sentence" must be found by the court not a fucktard stooge on the bench.

Posted by: rodsmith | Oct 6, 2012 1:15:22 AM

HEY! I saw you toe the ball out of the divot onto the nice clump of grass, Berman. Smartphones work both ways, y'know...

Posted by: Eric Knight | Oct 6, 2012 3:02:57 AM

yeah ,i agree it ,thanks share ...

Posted by: dig mart | Oct 6, 2012 5:46:07 AM

Rodsmith, no, any fact that increases the potential punishment to which the defendant is exposed above the blakely max must be found by the jury, regardless of whether in fact a sentence above the blakely max is actually imposed. Remember, Apprendi/blakely is about who convicts defendants of crimes, not about giving the jury a constitutional role to play in sentencing. Scalia in Ring "unfortunately, (for justice breyer) today's judgment has nothing to do with jury sentencing."


Posted by: bruce cunningham | Oct 6, 2012 7:43:47 AM

" Scalia in Ring 'unfortunately, (for justice breyer) today's judgment has nothing to do with jury sentencing.'"

Yes, Bruce, exactly. Once again--if a court can sentence a guy from 1-5 years based on a conviction (i.e., with no further jury input), then why is it problematic if the legislature channels the discretion by saying that if the judge finds certain facts the judge cannot go lower than say three years? Is the argument really that Apprendi requires that all people convicted of a crime must have a chance to be sentenced at the full range of a given crime? That seems like nonsense to me.

Posted by: federalist | Oct 6, 2012 8:26:48 AM

federalist, you have identified the difficult question presented by Harris, and one which I have spent many hours thinking about. Here is my response.

Let's go back to what Thomas, who was the swing vote in Apprendi, said in his concurrence. "the question presented is, simply put, what is a crime." Suppose the legislature passes a law which says that if a certain set of facts are found to exist a defendant may receive a sentence within a range of 0 to 10 years. But if another set of facts exists, then the range of sentences from which a judge, in his or discretion, can select a sentence is 8 to 10 years. Do the two sets of facts, (or number of sticks in the Roman fasces as my crim law prof used to like to say) describe two different crimes? I think yes.

The proof of the pudding to me is to ask a person "would you rather be facing a sentence of probation to ten or a sentence of 8 to 10?" Any rational person would select the sentence range which includes the possibility of not going to prison. So, the 8 to 10 sentence range is "more severe" than the probation to ten range. Which would trigger the Sixth Amendment protection of having the jury, not the judge, decide if those facts describing the 8 to 10 year sentence exist.

Thank you for turning the microscope precisely onto the critical question. I'm happy for you to try to persuade me that a sentence range of probation to 10 is constitutionally fungible with a sentence range of 8 to 10. You'll have difficulty, but I'm willing to listen and consider your argument.


Posted by: bruce cunningham | Oct 6, 2012 8:47:55 AM

I said on another thread that federalist and Michael R. Levine exemplify the best of commenters, and I should add bruce cunningham to that list.

What a pleasure it is to read thoughtful, analytical posts that focus on law. No snark, no hiding the ball, no fancy dance, no ad hominem. Just trying to think it through.

Thank you, gentlemen.

Posted by: Bill Otis | Oct 6, 2012 9:39:56 AM

A couple of things, bruce, first, I am a bit troubled by acquitted conduct being used to trigger a mandatory minimum--however, the devil is in the details (e.g., scope of what was acquitted), and I don't think it's a problem at all. (Just clearing throat--I know you didn't make that point, someone else here did.)

You make an interesting point, i.e., that the mandatory minimum almost creates a separate crime. I think there are couple of problems with that. The real thrust of Apprendi is that the legislature cannot append (cute huh?) time onto what was authorized by the jury in the first place, as that would basically allow a truncated jury verdict to give the judge the ability to pile on. So, to take an extreme example, let's say there's a reckless driving statute that sets the punishment at a max of 180 days in jail, but if the judge finds that a death resulted, then the punishment can be up to LWOP. Apprendi says no.

That risk isn't present in the mandatory minimum context. At bottom, it cannot be forgotten that Apprendi is focused on protecting the right to a jury trial--i.e., what power is allocated to the jury in our system. It's clear that under our system, sentencing ranges for a particular crime are fine. That necessarily means that the jury is out of the picture--its function discharged (from a Constitutional standpoint). So once the jury is out of the picture--why can't there be rules about where in the range the judge picks? Basically, what you're arguing is that there is a constitutional entitlement to a chance at getting the part of the range forbidden under a mandatory sentencing scheme. Saying that I'd rather be convicted of a crime where the sentence is 1-10 vice 5-10 is true, but unhelpful. Where's the entitlement? How does the jury's role suddenly become undischarged simply because a statute says that if a judge finds X, he cannot utilize a certain part of the range? How did we get from the maximum authorized to the range authorized by the jury's verdict? Yeah, the defendant cares, but so what? What makes unfettered judicial discretion to pick a sentence under the max authorized by the jury constitutionally required? That's the question, I think, you have to answer. And I don't think there's a good one.

I cannot let this one go:

"I'm happy for you to try to persuade me that a sentence range of probation to 10 is constitutionally fungible with a sentence range of 8 to 10."

Neat trick. But ultimately, that's just a rhetorical device. The bottom line is that if the constitution doesn't make a distinction then the distinction is irrelevant. The issue is whether, from the standpoint of protecting the jury's function, the two are different. In first your example, the jury has no say-so if the judge happens to pick 10 years. So how does the jury somehow get say-so because the judge has to do X (within that range) if he finds fact Y. What is it about the mandatory nature that revives the jury's power?

I understand that this can be flipped back to the Apprendi situation (and the permutations)--but there's a fundamental difference---the jury verdict has to authorize the max. If it does not, then you have the jury passing on less than the full crime. It's a technical distinction, and maybe you simply don't care. That's fine, but in a system where "trial by jury" is sacrosanct, you simply cannot have a situation where there are judge add-ons to the max of what the guy was convicted of. Within the range authorized by the jury, I don't see where judicial discretion can be channeled, even on a mandatory basis, since the jury doesn't have a say-so in the first place.

I think an extreme example will suffice. Let's say you have a statute that says that the max for DUI is 10 years with minimum sentence of probation. And let's say that state appellate courts decide that it is per se an abuse of discretion to give probation where there is a death involved? Does that now trigger your proposed rule?

Posted by: federalist | Oct 6, 2012 9:57:07 AM

Well, Bill, with respect to me, I think it's the case of the blind squirrel getting the acorn.

Posted by: federalist | Oct 6, 2012 10:22:24 AM

And Doug, when are you going to weigh in on this discussion?

Posted by: federalist | Oct 6, 2012 10:23:34 AM

I suspect, federalist, that I will be discussing the state and fate of Harris a whole lot over the next six months. But what's the rush? Right now, I am still trying to decide whether and how I might want to get involved in this case as an amicus.

Posted by: Doug B. | Oct 6, 2012 10:57:06 AM

yes, federalist, your dwi hypothetical implicates Sixth Amendment concerns, in my opinion. If an appellate court establishes a floor which is higher than the floor established by the legislature upon a finding of a death is involved, I believe a jury has to decide if a death is involved. Because the range of punishment is different than the range of punishment would be if no death was involved, I believe we are talking about a different, more severe, crime. (this hypo I assume must occur in federal courts, because NC appellate courts can't inquire into the reasonableness of sentences, short of a straight out as applied eighth amendment challenge)


Posted by: bruce cunningham | Oct 6, 2012 12:44:29 PM

U.S. v. Booker, 543 U.S. 220, 239-240 (2005)(6amen merits opinion):

* * * *

Stare Decisis:
The Government next argues that four recent cases preclude our application of Blakely to the Sentencing Guidelines. We disagree. . . .
* * * *

In Witte v. United States, 515 U. S. 389 (1995), we held that the Double Jeopardy Clause did not bar a prosecution for conduct that had provided the basis for an enhancement of the defendant's sentence in a prior case. "We concluded that `consideration of information about the defendant's character and conduct at sentencing does not result in "punishment" for any offense other than the one of which the defendant was convicted.' Rather, the defendant is `punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . . .'" United States v. Watts, 519 U. S. 148, 155 (1997) (per curiam) (emphasis deleted) (quoting Witte, 515 U. S., at 401, 403). In Watts, relying on Witte, we held that the Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines. In neither Witte nor Watts was there any contention that the sentencing enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth Amendment. The issue we confront today simply was not presented.[4]
* * * *

[4] Watts, in particular, presented a very narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument. It is unsurprising that we failed to consider fully the issues presented to us in these cases. See 519 U. S., at 171 (KENNEDY, J., dissenting).
* * * *

Alleyne does present it, does it not?

Posted by: TucsonBarry | Oct 6, 2012 12:50:51 PM

federalist, it seems like there would be a separation of powers issue if the judicial branch were to establish a per se rule limiting the range of punishment. The power to determine permissible ranges of punishment has been the sole province of the legislative branch. bruce

Posted by: bruce cunningham | Oct 6, 2012 2:35:35 PM

I do like this example fed.

"I think an extreme example will suffice. Let's say you have a statute that says that the max for DUI is 10 years with minimum sentence of probation. And let's say that state appellate courts decide that it is per se an abuse of discretion to give probation where there is a death involved? Does that now trigger your proposed rule?"

As far as i'm concerned the United States Constitution says a jury verdict is required to convict or punish for any crime.

Since the jury in your example found this individual guilty of a DUI...then that's what you sentence for. Uncharged or Unconvicted actions legally did not happen. If the DA was too stupid or too chicken to charge the individual for Murder that is his/her fault. You can not punish the defendant becasue the DA was a typical fucktard govt stooge who screwed up.

Posted by: rodsmith | Oct 6, 2012 2:47:59 PM

Never read that decision before. This part is very very very interesting.

"Rather, the defendant is `punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . "

Darn i though that pesky Constitution requred a Jury verdict to Punish someone. Silly me!

Of course we have to remember this is the same buch of treasonous govt fucktard stooges who brought us "expost" does not apply to "civil" law in direct oppositon to the statement in said constitution "No expost laws"

Also the same buch of treasonous govt fucktard stooges who decided "no expost" does not apply in sex crimes laws either.

So another find bit of criminal stupidity from the deaf/dumb/blind govt fucktards on the bench.

Posted by: rodsmith | Oct 6, 2012 2:53:05 PM

Bruce, I dont think so. The federal constitution has nothing to say about how a particular state allocates power between the branches of government.

Posted by: federalist | Oct 6, 2012 3:11:40 PM

Federalist acknowledged that he's "a bit troubled by acquitted conduct being used to trigger a mandatory minimum," but ultimately he did not "think it's a problem at all." I do, and and I think it's why the Harris rule violates the Sixth Amendment.

Say a state legislature provides that premeditated intentional murder is punishal;e by LWOP but intentional murder is punishable by a range of 0-30 years, unless a court finds that the intentional murder was premeditated, in which case it is punishable by a range of 20-30 years. Defendant goes on trial for both charges and the thrust of his defense is that the murder was not premeditated. The jury agrees and acquits him of the top count but convicts him of the lesser count. But then along comes the judge - the "lone employee of the state" referenced in Blakely - and s/he says, "Stupid jury didn't know what it was doing! This murder was clearly premeditated! Now, I actually think the most appropriate sentence here is 10 years, but because I find that the murder was premeditated I must impose 20 years."

Is it really possible that this does not violate a defendant's Sixth Amendment right to a jury trial? The jury's factfinding has been affirmatively overruled by a judge. This is exactly what the Sixth Amendment forbids.

Posted by: Anon | Oct 6, 2012 6:54:48 PM

Exactly right, Anon!

Also, your example supports the comment I made in the first post above that there is a double jeopardy issue lurking in Alleyene.

In your hypo premeditated intentional murder is a greater offense than intentional murder under the principles in Brown v Ohio, because the proof of premeditated intentional murder proves the existence of intentional murder. Also, under Brown, premeditated intentional murder is the "same offense" within the meaning of the Fifth Amendment as intentional murder.

So, the defendant was placed in jeopardy for a greater offense and was convicted of a lesser offense by the jury. Then, he is placed in jeopardy a second time in front of the judge for the same offense of premeditated intentional murder.

Again, I come back to at its core Apprendi prohibits a second trial before the judge for a greater offense after the jury convicts the def of a lesser offense.

Anon, I believe you correctly pinpoint the source of Scalia's passion for Apprendi/Blakely with the lone employee of the state quote. Scalia believes wholeheartedly that a lone employee of the state cannot try "the crime the state actually seeks to punish" after the jury has acquitted the def of that very same crime.


Posted by: bruce cunningham | Oct 6, 2012 7:59:03 PM

I get the sense that people don't like the Harris rule and other boogeymen of modern day criminal statutes, but no one seems to be able to address my point, namely that once the jury has spoken as to the range via its verdict, why is it precluded from input when there's judicial discretion for a decision as to what the defendant is going to get but gets a say when the judge has to follow a mandatory minimum sentence for certain facts? That just doesn't really make a ton of sense. I get why the defendant cares, but how is the jury trial right not affected when the judge can do what he pleases, but affected when he is bound by a mandatory minimum statute? The jury has performed its function, and the verdict supports the maximum--so how is the Sixth Amendment violated? I am sure that some Justices will simply consider this all horribly unfair---but that's how we got to a place where there has to be this thing called parole under the Constitution, even in regimes where there is executive clemency.

Posted by: federalist | Oct 6, 2012 9:00:40 PM

Federalist, you didn't address my example. Does it not violate the Sixth Amendment for a state employee to make a contrary fact-finding than does the jury?

I agree with you that the Harris problem is conceptually different than the Apprendi problem, because in the latter the sentence is greater than that authorized by the jury's verdict alone and in the former the sentence is authorized by the jury's verdict alone. But the fact that Apprendi does not compel a different result in Harris (arguably it does, but let's assume (because SCOTUS has told us so) that it doesn't) doesn't mean that Harris is a correct application of the Sixth Amendment. Stated another way, the NJ regime at issue in Apprendi violated the 6th Amendment for one reason - sentence beyond that authorized by the verdict. The federal regime at issue in Harris, in the newly granted case, and in my hypo violate the 6th Amendment for a different (but related) reason - the judge can nullify and contradict the jury's factual findings to the defendant's detriment.

Posted by: Anon | Oct 6, 2012 10:08:50 PM

anon, here is a thought. The judge is not making a finding of fact which is contrary to the jury. Actually, what the judge is doing is saying, in your hypo, "the state has proven by a preponderance of evidence to the judge what they couldn't prove beyond a reasonable doubt to the jury."

There is no place on a jury verdict form for a finding "the defendant is factually innocent of the judge." The verdict is simply that the state didn't prove beyond a reasonable doubt what they allege.

Which makes me think the double jeopardy aspect is a driving force behind all this.


Posted by: bruce cunningham | Oct 7, 2012 9:43:13 AM

Anon, I think the problem, as bruce alludes, is that not guilty doesn't mean "didn't do it." I think, bruce, the DJ issue is a stretch. The defendant hasn't been tried twice.

And the other related problem is that no one would bat an eye if a judge, as part of his discretion, took into account the acquitted conduct as part of a non-mandatory regime.

Posted by: federalist | Oct 7, 2012 10:30:09 AM


take a look at Scalia's "circuitbreaker" quote in Blakely. I believe the defendant has been placed in jeopardy twice for the same crime, if there can be a bench trial to decide if def is guilty of premeditated intentional murder following a jury trial for the same offense, to use anon's hypothetical. Scalia says the jury trial cannot be "a mere preliminary" to a trial for "the crime the state actually seeks to punish."


Posted by: bruce cunningham | Oct 7, 2012 12:02:00 PM

Bruce, if you're right, then your DJ problem goes away along with my 6th A problem. As federalist says, the defendant hasn't been tried twice. At most, as you say, the judge has simply made a finding that the State proved the allegation by a preponderance of the evidence when it couldn't prove as much BRD. There was only one trial, but that trial had 2 fact-findings by different factfinders using different standards of proof. If such a thing violates double-jeopardy it's a new one on me.

Federalist, I think the problem with your analysis is that it ignores the jury's role as fact-finder. What if, instead of general guilty/not-guilty verdict forms, the court submits an interrogatory to the jury - "Did the defendant act with premeditation?" And the jury answers that question "no." Not, "no, the state couldn't prove it," but just, "No, we find as a matter of fact that the defendant did not act with premeditation." I don't think the 6th Amendment allows the judge to override that factual finding.

Posted by: Anon | Oct 7, 2012 12:17:49 PM

anon, I think there are two successive trials in your hypo, just as Scalia said that there cannot be an "inquisition by a lone employee of the state" following the preliminary trial by the jury. Brown v Ohio prohibits successive trials for a greater and lesser offense. I am just saying that the successive trials are not interrupted by a jury selection, since the second trial is a bench trial. Apprendi prohibits a bench trial following a jury trial, in my opinion.

As far as your concern that this is an out of the ordinary example of double jeopardy, my response is that this whole scenario is out of the ordinary. Put on basic terms, the defendant in your hyp "ran the gauntlet once" on whether he committed premeditated intentional murder. The fifth amendment protects him from running it again, this time in front of a judge sitting alone.

Posted by: bruce cunningham | Oct 7, 2012 12:44:18 PM


Doesn't Watts answer the DJ question? Apprendi doesn't change that. You could disagree with the holding, but the question is resolved.

As for the 6th A. argument it has been resolved twice: In MacMillan and Harris. One pre Apprendi and one post Apprendi. In MacMillan the Court flatly said "Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it." That is all this mandatory minimum does as well.

The jury right never went this far. People want to keep extending it, but ultimately it's going to back fire. If every time the legislature attempts to curb judicial discretion people claim 6th A. to make it more difficult, then they will stop trying to curb discretion. It will go back to unfettered discretion which I'm sure people would love.

Posted by: Matt | Oct 7, 2012 1:04:16 PM

5amen vs 6amen.

I'm thinking Alleyne ought to follow 6amen's US v. Nathaniel Jones, 526 US 227 (1999).

Posted by: TucsonBarry | Oct 7, 2012 1:55:42 PM

Matt said: "If every time the legislature attempts to curb judicial discretion people claim 6th A. to make it more difficult, then they will stop trying to curb discretion. It will go back to unfettered discretion which I'm sure people would love."

To which I reply, "let justice be done though the heavens fall."

Posted by: Anon | Oct 7, 2012 5:05:56 PM

The acquitted conduct issue seems to me to be more optics than anything else. If the judge is simply unfettered, then no one is whining about what the judge does--so why does the acquitted conduct become a problem when there is mandatory sentencing if a judge finds a fact? The first response is that the jury's verdict is basically that the government didn't prove BRD. That doesn't mean that the court can't take into account what it finds in choosing a sentence. The other issue, of course, is that the prosecution is penalized for acquitted conduct when it wouldn't be penalized if it never brought the acquitted conduct in front of the jury, but saved it for the judge only. That seems an odd rule.

Posted by: federalist | Oct 7, 2012 6:10:10 PM

how do you get in front of a judge if you've saved your acquitted conduct?

Posted by: TucsonBarry | Oct 7, 2012 10:16:30 PM

Tucson--pretty easy--in the sentencing hearing . . . .

Posted by: federalist | Oct 8, 2012 12:54:22 PM

"The jury has performed its function, and the verdict supports the maximum--so how is the Sixth Amendment violated"

Because the 6A requires more than the fact that jury verdict "supports" the maximum. There has to be a direct nexus between the facts that jury found and the actual sentence imposed. I don't agree with Bruce that it's a question of jeopardy; the actual amount of jeopardy is irrelevant. Fundamentally, the judge can't create facts. That's the heart of the history behind the 6A. He can't create facts not only that are in direct contradiction to jury found facts; he can't create facts where the jury is silent, either. He has to base his sentence on the facts the jury found...nothing more and nothing less.

Posted by: Daniel | Oct 9, 2012 1:53:17 AM

you charge and convict alleyene of unarmed robbery. no overcharging. no constructive amendment.

at sentencing, you allege his simple robbery sentence should be at the higher end of the range because:
1. it prevents disparate sentences among co-defendants.
2. alleyne associated with someone who did arm himself or herself - - whether by choice or fortuity.
3. alleyne should have foreseen it, and should penalized for not foreseeing it.
4. he probably foresaw it.

alleyne rebuts and mitigates the allegation.

alleyne receives individualized sentencing as a simple robber.

not such an odd rule, is it?

Posted by: TucsonBarry | Oct 9, 2012 8:12:20 AM


#1 is acceptable.

#2-4. Did the jury decided those were the facts. If they didn't that's is an odd rule, don't you think.

Posted by: Daniel | Oct 9, 2012 5:21:40 PM

Folks, I need to clarify my double jeopardy concern. I'm not saying Harris presents a DJ problem instead of a Sixth amendment concern. I'm saying there is DJ problem in addition to a Sixth Amendment problem. Actually, I believe EVERY Apprendi scenario presents a double jeopardy issue under Brown v Ohio.

Brown says that for Fifth Amendment DJ purposes a greater offense and lesser offense are the same offense. Because the proof of the greater automatically proves the lesser. Apprendi/Blakely involves a lesser offense , found by the jury and a greater offense, found by the judge. Look at Scalia's circuitbreaker quote in Blakely or part III of his Sattazahan v Penn opinion to see how he is definitely saying that Apprendi involves two separate crimes being considered by two entities. The jury in the first instance, the jduge in the second.

Suppose the state tries someone for common robbery, gets a conviction and then tries the def again for the greater offense of armed robbery. Same issue. Two crimes, which for DJ purposes, are the same.

Let me know if there are questions. I think it is pretty straightforward.


Posted by: bruce cunningham | Oct 9, 2012 10:46:45 PM

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