Thursday, July 22, 2004

Ameline and those Blakely Waivers

What I found most interesting in the 9th Circuit's opinion in U.S. v. Ameline, was that the court not only agreed with the idea of sentencing juries, but -even more important- that the court indicates that even if the defendant waived his right to the sentencing jury, the Court still had to find any sentencing enhancing facts using the beyond a reasonable doubt standard. See slip op. at n.19, p. 34. Keep this in mind when presented with those Blakely waivers.
The commentary to § 6A1.3 explains “The Commission believes that use of a preponderance of the evidence standard is [*29] appropriate to meet due process requirements and policy concerns in resolving disputes regarding application of the guidelines to the facts of a case.” To the extent that, as a result of Blakely, predicate factual determinations must be made by the reasonable doubt standard before § 2D1.1(c) and § 2D1.1(b)(1) can be applied, this commentary conflicts with the Sixth Amendment and is unconstitutional as applied in certain circumstances. Section 3742 providing for appellate review of district court sentences under the Guidelines appears to contemplate that it is the district judge’s responsibility to make the requisite findings of fact at sentencing. See 18 U.S.C. § 3742(e) (courts of appeals “shall give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless they are clearly erroneous . . . .”); see also Fed. R. Crim. P. 32(i)(3)(B) (district court “must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute”). The assumption behind this provision (and Rule 32), that the district court will make the requisite findings of fact, is unconstitutional under Blakely in cases absent a jury waiver.
Id. at 28-29.