DOJ Blakely Waivers are Unconstitutional to the Extent they Pretend to Achieve Validity from a Defendant's Waiver of the Burden of Proof

Over at Sentencing Law and Policy, I ran into this interesting comment here by Marcia, to one of Professor Berman's posts re US v. Mooney (8th Cir.):

Maybe its just me, but I think both the majority and dissent are off-base. Severability shouldn't even be in the equation. The guidelines can continue to be applied under Blakely, but only to the extent that a defendant is sentenced for conduct involving facts that were either admitted or indicted, and proved beyond a reasonable doubt to a jury (or judge, if a defendant consents to a trial by the court). The import of Apprendi and Jones is that reliance on a fact that increases a defendant's sentence beyond the maximum elevates that fact to the status of an element. Blakely simply clarifies that the maximum is not the technical maximum in the criminal code statute (that wasn't really involved in the process anyway) it is the maximum that a judge could impose without relying on the fact (i.e., the Guideline range). So, all it means is that the government simply has to prove their case. If they want a higher sentence, they have to charge it and prove it. This really isn't about the sentencing guidelines or determinate sentencing at all . . . its basic criminal law and procedure and basic constitutional law. In implementing the Guidelines, courts, prosecutors and everyone else just forgot about the elements of a crime. Scalia's opinion is just getting back to basics. Blakely is completely consistent with the other pronouncements by the Supreme Court on the subject of elements of a crime. Read Jones, Apprendi, Ring and Sattazahn. Also take a look at Cotton, Gaudin (Scalia opinion), Sullivan v. Louisiana, Mullaney and Scalia dissent in Monge. Everything makes sense when the enhancing facts (those that increase the newly defined maximum) are regarded as elements. Also, everybody is making a big deal out of the jury aspect (which, of course, was the only thing addressed in Blakely) when the really big deal, and probably the impetus for these recent holdings by the Supreme Court, is the fact that the Fifth Amendment Due Process Clause imposes on the government a duty to prove every element beyond a reasonable doubt. Many of the outrageous sentences that occurred under the guidelines were based on so-called evidence that wouldn't even satisfy a preponderance standard. It is that effect on fundamental fairness coupled with prosecutorial over-reaching that has been most troubling about the Guidelines. But, we shouldn't throw the baby out with the bathwater. The guidelines can be okay if enforced within the parameters of proving every element beyond a reasonable doubt (of course, defendants can and will still plead to facts when it is clear that the government could prove them beyond a reasonable doubt anyway). The government's unequal bargaining position will be brought in line under these constitutional constraints. Also, a defendant can consent to a trial to the court, but he can't consent to a conviction on only a preponderance of evidence (again assuming the fact is an element) or else the evidence wouldn't be sufficient to hold up on appeal. (Where sufficiency of evidence is reviewed on a beyond a reasonable doubt standard). Yes, you say, but a defendant can waive his Constitutional rights, surely he can waive the preponderance standard? No, because its not the defendant's right, it’s the government's burden. The defendant's option is to admit the fact if he doesn't want to put the government to its proof. These are just some of my thoughts, for what they’re worth. -an interested attorney.

(emphasis added). I cannot agree more with Marcia. It seems to me that too few are discussing in depth the matter fo Blakely waivers and the way in which defendants are being placed in a situation of waiving the burden of proof or facing a sentencing jury.