Monday, February 05, 2007

Proof Beyond Reasonable Doubt Not Necessary To Apply Sentencing Enhancements That Don't Increase Sentence Beyond Stat Max

[The Third Circuit’s decision in United States v. Grier includes the majority’s opinion, two concurrences and two dissents. The majority opinion, which is fairly straightforward, is summarized below. Summaries of Judge Ambro’s concurrence, Judge Sloviter’s dissent and Judge McKee’s dissent, will follow in a separate post.]

Brief Background: Defendant pled guilty to one count of 18 U.S.C. § 922(g)(1). District Court, employing preponderance standard, applied 4-point enhancement pursuant to U.S.S.G. § 2K2.1(b)(5) (use of firearm in connection with another felony offense), based on finding that defendant committed aggravated assault. Enhancement raised range from 84 to 105 months to 120 to 150 months. Stat max was 10 years. District Court granted 2-level downward departure, lowering advisory range to 100 to 120 months, and imposed sentence of 100 months. Defendant appealed, and initial appellate decision was vacated for rehearing en banc.

The Third Circuit held today in United States v. Grier that facts relevant to sentencing enhancements, even when those facts constitute a separate offense, need not be established beyond a reasonable doubt, so long as the sentence remains within the statutory maximum set by the statute of conviction. The Court reasoned that the jury trial and reasonable doubt guarantees apply only to the facts constituting elements of the charged crime. Once a defendant is convicted by proof beyond a reasonable doubt as to all of the elements, thereby triggering a statutory maximum penalty, "a court may impose any sentence on the individual up to that maximum." That maximum is the one set by Congress in the United States Code. Judicial factfinding for the purpose of setting a sentence within that range does not offend the Constitution. In the course of its decision, the Court distinguished United States v. Jones as involving statutory interpretation rather than a statement of constitutional doctrine and United States v. Cunningham as involving a mandatory sentencing regime.

Turning to the standards of review, the Court held that it will continue to review factual findings for clear error and to exercise plenary review over a district court’s interpretation of the Guidelines.

The Court remanded for more specific findings both as to the District Court’s finding that the conduct constituted an aggravated assault and as to its reasoning for the sentence imposed. It emphasized the need for "thorough explication of sentencing decisions" in the wake of Booker.
The Court declined to address the continued viability of United States v. Kikumura, given that the sentence in the instant case was within the guideline range.

Judge Rendell concurred in the judgment, writing separately to add that "due process concerns regarding the standard of proof at sentencing are minimal, if not non-existent, when the sentence is below the statutory maximum, as it was here." She noted the possibility, however, that due process concerns could be implicated when and if a defendant's sentence is "in fact based predominantly on conduct wholly collateral to his convicted crime."

Judge Ambro concurred in the judgment but only because he considers the matter controlled by Supreme Court precedent, namely, McMillan v. Pennsylvania and Harris v. United States. He wrote that while joining the result, he did not join the opinion "because, among other things, I do not agree with its suggestion that the Due Process Clause has no force in criminal sentencing."

More to come...

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