Precedential Value - Sixth Amendment


I.I. Specific Offenses II. Sentencing Guidelines III. Evidence IV. Fourth Amendment V. Fifth Amendment VI. Sixth Amendment >> VII. Other Constitutional Rulings VIII. Defenses IX. Plea & Sentencing Hearings X. Jury Issues XI. Probation & Supervised Release XII. Appeal XIII. Post-Conviction Remedies	Sixth Amendment: A. Right to Jury Trial/Booker B. Confrontation Clause C. Speedy Trial D. Right to Counsel/Self Representation E. Indictment - Variance/Deplicity F. Miscellaneous Sixth Amendment Right to Jury Trial/Booker Supreme Court Decisions • Blakely - Harmless Error Washington v. Recuenco, 05-83 (6/26/06) > Defendant was charged under Washington law with assault in the second degree. At trial, the judge provided a special verdict form wherein the jury could find that defendant committed the offense with a “deadly weapon.” The jury found defendant guilty and also found that he used a deadly weapon. At sentencing, instead of imposing a one year enhancement for the “deadly weapon” finding, the court imposed a three year enhancement for the use of a firearm. Defendant appealed and won in the state court, which found that Blakely error is structural and required automatic reversal. The state appealed and the Supreme Court granted certiorari. * Holding: In Blakely, the Supreme Court held that a trial court may not increase a statutory maximum sentence beyond what is mandated by the facts found in a jury verdict. In this case, the Court held that Blakely error is subject to harmless error review. Thus, even though the jury did not specifically make a finding that defendant used a firearm (as opposed to a dangerous weapon), the Court held that such an error was harmless and affirmed the enhanced sentence. • Right to Jury Trial - Apprendi/Blakely Cunningham v. California, 05-6551 (2/22/07) > Defendant was convicted in California state court of continuous sexual abuse of a minor under the age of 14. California’s sentencing scheme for this offense required the trial judge to impose a middle term sentence of 12 years, unless the judge found (1) sufficient aggravating factors, in which case the required sentence was 16 years, or (2) sufficient mitigating factors, in which case the required sentence was 6 years. The aggravating or mitigating factors included facts about the defendant, facts about the offense, and any other fact reasonably related to the decision being made. In defendant’s case, the judge found sufficient aggravating facts by a preponderance of the evidence and sentenced defendant to 16 years. Defendant lost his appeals in state court, and the Supreme Court granted certiorari. * Holding: Relying on Apprendi and Blakely, the Court held that California’s sentencing system violated defendant’s right to trial by jury. Under the California system, the trial court was required to make findings of fact that increased defendant’s middle term limit, without the facts being submitted to a jury and proven beyond a reasonable doubt. This system was violative of defendant’s Sixth Amendment rights, and accordingly, the Court struck down the California sentencing scheme and vacated defendant’s sentence. • Right to Jury Trial/Apprendi Oregon v. Ice, 07-901 (1/14/09) > Defendant was convicted in state court for two burglaries and four sex crimes. At sentencing, pursuant to Oregon’s sentencing statutes, the trial court made factual findings that permitted the court to run the sentences consecutively. Defendant argued on appeal that Apprendi prohibited the court, as opposed to the jury, from making factual findings that permitted the imposition of consecutive sentences. Defendant lost his state court appeals, and the Supreme Court granted certiorari. * Holding: The Court held that Apprendi does not require that a jury make findings regarding factual issues related to whether sentences are imposed consecutively or concurrently. The Court found that such issues were historically within the province of the judge, not the jury, and that Apprendi did not alter this longstanding precedent. Accordingly, defendant sentence was affirmed. Sixth Circuit Decisions • Booker U.S. v. Hamm, 03-5658 (3/8/05) > Defendant was charged with using the internet to induce a minor to travel across state lines for purposes of sexual activity. Defendant’s sentencing guideline range was 33-41 months, and the court imposed a 33 month sentence. Defendant did not raise Booker issues at sentencing, but did request a downward departure. * Holding: The court found plain error based upon Booker. The court held that, given that the district court had imposed the low end of the guideline range and that it had shown apparent sympathy for the defendant at the sentencing hearing, the district court may have given a lower sentence if it knew that the sentencing guidelines were non-mandatory. Thus, the case was remanded for resentencing. • Booker U.S. v. McCraven, 03-6311 (3/17/05) > Defendant was convicted of drug and weapons charges, and his guideline range at sentencing was 84-105 months. This calculation included a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing the firearm in relation to the narcotics. Defendant agreed at the plea hearing that he had possessed the firearm. Defendant did not challenge the guideline calculation at sentencing, but he did request a downward departure. The district court granted the departure and sentenced defendant to 72 months. During the pendency of the appeal, the Supreme Court decided Booker. * Holding: The court determined that the case should be remanded for resentencing even though there was no Sixth Amendment violation in the sentence. The two-level enhancement for the gun did not violate Booker because the defendant had admitted to the gun at the plea hearing. Nonetheless, the court held that remand was appropriate so that the district court could reconsider the sentence in light of the fact that the guidelines are now advisory. •Booker U.S. v. Jackson, 03-2493 (3/24/05) > Defendant was sentenced for being a felon in possession of a firearm and received a two-level enhancement under the guidelines because the firearm was stolen. Defendant had not admitted at the plea hearing that the gun was stolen. Defendant was sentenced to 108 months, which was the middle of the guideline range. During the pendency of the appeal, Booker was decided. * Holding: The court found plain error based upon Booker. Even though defendant was sentenced to the middle of the guideline range, the court found a remand was necessary because the district judge commented that “the guidelines were a failure and that he could not depart from them even if he wanted to.” • Booker U.S. v. Moncivais, 02-6457 (3/24/05) > Defendant’s guideline range was increased at sentencing from a range of 235-293 months to a range of 360-life based upon relevant conduct drug amounts and a leadership-role enhancement. The district court sentenced defendant to 360 months, and while the case was pending on appeal, Booker was decided. * Holding: The court found plain error because the relevant conduct and leadership-role enhancements violated the Sixth Amendment pursuant to Booker. Thus, the case was remanded for resentencing under the non-mandatory guideline scheme. • Booker U.S. v. Forrest, 03-5672 (3/30/05) > Defendant was convicted of a Hobbs Act robbery and of brandishing a firearm during the commission of a crime of violence. The district court granted defendant a downward departure at sentencing based upon the fact that the government had indicted defendant federally only because he refused to plead guilty to the robbery charge in state court and because the government did not normally prosecute Hobbs Act robberies except in cases involving organized crime, gang activity, or wide-ranging schemes. The government appealed, and during the pendency of the case on appeal, Booker was decided. * Holding: The court held that even after Booker, district courts must consider the appropriate sentencing guideline range. Thus, even though judges are no longer bound by the guidelines, the district court must first consider the proper guideline range, and must consider “what the guidelines say about departing from the guidelines sentencing range.” After determining the guideline range, and whether a departure is appropriate, the district court may then consider whether it will follow the guidelines or not, and state its reasons therefore. In defendant’s case, the court thus analyzed the appropriateness of the downward departure and found that the district court erred in holding that the departure was appropriate. A district court may not focus on whether the government’s decision to prosecute someone was abnormal, but only on whether the defendant’s conduct was outside the heartland. In defendant’s case, his conduct was clearly within the heartland of robberies punishable by the Hobbs Act, and accordingly, no departure was appropriate. The sentence was thus reversed and the case remanded for consideration in light of Booker. • Booker U.S. v. Webb, 03-6110 (4/6/05) > Defendant pled guilty to one count of possession of a machine gun and in the plea agreement stipulated to the appropriate sentencing guideline range. At sentencing, the district court followed the recommendation in the plea agreement and sentenced defendant to the top end of the guideline range. During the pendency of the appeal, Booker was decided. Holding: The court held that no plain error occurred in the sentencing of defendant because he was not prejudiced by being sentenced under the then mandatory guidelines scheme. The court acknowledged that, pursuant to its prior holding in U.S. v. Barnett, prejudice to a defendant is presumed where a district court sentences a defendant under the previously mandatory guidelines scheme. Nonetheless, the court found that the presumption was overcome under the facts of defendant’s case because (1) defendant agreed to the sentencing range in the plea agreement, (2) the district court considered an upward departure at sentencing and said that the defendant was a menace, and (3) the district court imposed a sentence at the top end of the guideline range. The court then determined, pursuant to Booker, that the sentence was not unreasonable. The court declined to impose a rigid test for evaluating reasonableness, but based its determination upon the fact that the district court had appropriately considered the guidelines and the other factors in 18 U.S.C. § 3553(a) in fashioning the sentence. The court, in footnotes, commented on two lingering questions after Booker: (1) the court specifically declined to address whether a district court must always calculate the “precise appropriate guideline range” in order to comply with Booker; and (2) the court noted that a sentence within the applicable guideline range is not per-se reasonable. • Booker U.S. v. Trammel, 03-6652 (4/8/05) > Defendant was convicted of drug and weapon charges, and the district court sentenced him to the bottom end of the guideline range. During the pendency of the appeal, Booker was decided. Holding: Although no other error occurred in the sentencing process, the court remanded the case for resentencing under Booker. Pursuant to the court’s prior holding in U.S. v. Barnett, the court will presume prejudice where a district court sentences a defendant under the then-existing mandatory guideline scheme. In defendant’s case, the court found nothing in the record to rebut the presumption of prejudice, particularly where the district court had sentenced defendant to the bottom end of the guideline range and had stated at the sentencing that the low end was appropriate because of the defendant’s 10-year old son at home. • Booker U.S. v. Jones, 03-6239 (4/15/05) > Defendant was convicted after trial for a meth conspiracy, and was sentenced to 262 months in prison. The sentence was based upon amounts of ephedrine located at defendant’s home, but such amounts were not found by the jury. Defendant did not object to the drug amount, nor did he challenge the application of the guidelines at sentencing. During the pendency of the appeal, the Supreme Court decided Booker. * Holding: The court found plain error in the application of the sentencing guidelines to the case and in the calculation of a sentence based upon drug amounts not found by a jury. Accordingly, the court remanded the case for resentencing pursuant to Booker. • Booker U.S. v. Hudson, 04-5096 (4/22/05) > Defendant was convicted of being a felon in possession of a firearm and his sentencing guideline range was 46-57 months. The district court imposed a sentence of 53 months, the middle of the guideline range. During the pendency of the appeal, Booker was decided. * Holding: Relying on the prior Sixth Circuit decision in Barnett, the court held that, even though there was no Sixth Amendment violation, the case had to be remanded because the district court had sentenced based upon a mandatory guideline scheme. The court noted that Barnett requires the court to presume prejudice where a court mistakenly applies the guidelines as mandatory. The court found no clear and specific evidence to rebut the presumption and accordingly remanded the case for resentencing consistent with Booker. • Booker United States v. Smith, 04-5359 (4/22/05) > Defendant was charged with being a felon in possession of a firearm. At trial, testimony was elicited that defendant had actually been involved in a robbery, but the testimony was equivocal. Defendant was convicted, but at sentencing, the district court sentenced him based upon the alleged robbery. This increased sentence was based upon a cross reference in the gun guideline (§ 2K2.1) that allows a district court to sentence a defendant for conduct that is proven by a preponderance of the evidence, i.e., the robbery. Accordingly, defendant’s sentencing range was increased from 37-46 months for the gun, to 110-137 months for the robbery. Defendant was sentenced to 120 months. During the pendency of the appeal, Booker was decided. * Holding: The court held that application of the cross reference to the robbery guideline violated defendant’s Sixth Amendment rights pursuant to Booker because defendant was sentenced based upon conduct that was neither pled in the indictment nor proven to the jury beyond a reasonable doubt. Accordingly, the court remanded the case for resentencing under the non-mandatory guideline scheme established by Booker. • Booker U.S. v. Alva, 03-5175 (4/29/05) > Defendant was convicted of cocaine distribution. At sentencing, the district court determined that defendant qualified for a two-level enhancement for relevant conduct drug amounts, and a two-level enhancement for obstruction of justice. Based upon the enhancements, defendant’s sentencing range was increased from 121-151 months to 188-235 months. The court sentenced defendant to 188 months and commented that the sentence seemed extraordinary in light of defendant’s criminal history category of I. During the pendency of the appeal, Booker was decided. * Holding: The court held that application of the two sentencing enhancements violated defendant’s Sixth Amendment rights. Further, even absent a Sixth Amendment violation, the court presumes prejudice where a defendant is sentenced under a mandatory guideline regime. Thus, the case was remanded for resentencing in light of Booker. • Booker U.S. v. Poole, 04-5016 (5/10/05) > Defendant was convicted of being a felon in possession of a firearm, possession of cocaine with intent to distribute, and possession of a firearm in relation to a drug trafficking crime. At sentencing, the district court imposed a sentence of 322 months in prison. During the pendency of the appeal, Booker was decided. * Holding: The court found no Sixth Amendment violation in defendant’s sentence because any enhancements defendant received at sentencing beyond his convictions were based upon his criminal history. The court held that Booker’s Sixth Amendment bar does not apply to the fact of a prior conviction. Nonetheless, pursuant to the court’s prior decision in U.S. v. Barnett, prejudice to a defendant is presumed where the district court sentences under a mandatory guideline scheme. The court found no “clear and specific” evidence to rebut the presumption, and reversed the sentence, remanding the case for resentencing in light of Booker. • Booker U.S. v. Jackson, 04-3074 (5/24/05) > Defendant pled guilty to being a felon in possession of a firearm, and at sentencing the district court awarded defendant a downward departure from a sentencing range of 27-33 months down to a sentence of probation, with 6 months of house arrest. The court based its departure upon several discouraged and prohibited factors under the guidelines, and provided little reasoning or rationale as to the grounds for departing or the extent of the departure. The government appealed, and during the pendency of the appeal, Booker was decided. * Holding: The court held that the standard of review for a sentence after Booker is reasonableness. The court ruled that, after Booker, a district court must articulate its reasons for the sentence imposed based upon its consideration of the sentencing factors listed in 18 U.S.C. § 3553. This includes “acknowledgment of the defendant’s applicable guideline range as well as a discussion of the reasonableness of a variation from that range.” Further, the court must consider the “advisory provisions of the guidelines” and the other factors identified in § 3553. The court found that the district court had not adequately developed its reasons for the variation from the guidelines, and accordingly reversed the sentence and remanded for resentencing in light of Booker. • Booker U.S. v. Hollingsworth, 04-6172 (7/11/05) > Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court increased his guideline sentencing range under U.S.S.G. § 2K2.1(a)(2) because he had a prior conviction that qualified as a “crime of violence.” Defendant appealed, arguing that a determination as to whether a prior conviction is a crime of violence must, pursuant to Booker, be submitted to a jury and proven beyond a reasonable doubt. * Holding: The court held that a district court’s determination as to whether a prior offense is a crime of violence does not violate Booker. In so holding, the court relied upon the exception from Apprendi and Booker that the fact of a prior conviction may be a proper basis for a sentence enhancement without being submitted to a jury. The court thus concluded that the determination of whether the prior offense is violent is also squarely within the province of the district court. Nonetheless, the case was remanded for resentencing in light of Booker’s mandate that the guidelines are advisory. • Booker U.S. v. Amiker, 03-6001 (7/11/05) > Defendant was charged in a narcotics case, and entered into a plea agreement wherein he agreed that the sentencing guidelines applied to his case. At sentencing, the district court enhanced his sentence for being a leader and for possession of a firearm, neither of which were agreed to at the plea hearing. Defendant appealed. * Holding: The court found that the application of the two enhancements for leadership and a firearm clearly violated defendant’s Sixth Amendment rights under Booker because such enhancements were not agreed to by defendant at the plea hearing. The court went on to hold that the stipulation by the defendant in the plea agreement that the sentencing guidelines applied to his case did not prevent the availability of a remand based upon Booker. In so holding, the court distinguished the recent Sixth Circuit case U.S. v. Bradley. (See P.V., Issue 1). In Bradley, the court held that a defendant cannot appeal based upon a Booker issue if the plea agreement contains an otherwise valid appeal waiver. In this case, however, there was no appeal waiver in the plea agreement. The court concluded that Bradley was a narrow holding, only addressing appeal waivers, and that it did not prohibit a Booker remand if the defendant agreed to the application of the sentencing guidelines in her plea agreement. • Booker U.S. v. Christopher, 04-3946 (7/28/05) > Defendant was convicted of four counts of mail fraud, and the district court sentenced him to 33 months in prison. The Sixth Circuit reversed the sentence, finding error in the loss calculation. Upon resentencing, the district court reduced defendant’s offense level by 1 point, and sentenced defendant to 30 months, the bottom end of the guideline range. Because Blakely had been decided, the district court issued an alternative statutory sentence of the same amount – 30 months. Defendant appealed. * Holding: The court held that, because the district court had imposed an alternative sentence, any error in sentencing was harmless. The court ruled that the district court’s imposition of an alternative sentence made clear the district court’s intention to give defendant the same sentence even if the guidelines were not mandatory. Further, the court found the sentence to be reasonable. Thus, the case was affirmed. • Booker U.S. v. Chandler, 04-6203 (8/16/05) > Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court concluded that defendant’s offense level was 20, pursuant to U.S.S.G. § 2K2.1. This level was based upon the district court’s conclusion that defendant’s prior conviction for facilitation of a felony was a crime of violence under the guidelines. Based upon such computation, the court sentenced defendant to 37 months in prison, the bottom end of the guideline range. The district court then provided an alternative statutory sentence of 37 months, in the event the guidelines were later found unconstitutional. Defendant appealed. * Holding: The court held that, because the district court had imposed an alternative sentence, the court’s review was limited to reasonableness. The court ruled that the district court had appropriately considered the applicable sentencing guideline range, and had expressed some consideration of the statutory factors. Accordingly, the sentence was affirmed. • Booker U.S. v. Puckett, 04-5988 (9/6/05) > Defendant was convicted of narcotics and weapons charges and at sentencing he requested a downward departure from the sentencing guidelines range. The district court denied the downward departure request, and defendant appealed. After defendant filed his proof brief in the Sixth Circuit, the Supreme Court decided Booker. Defendant then requested a remand pursuant to Booker in his reply brief. * Holding: The court held that, even after Booker, the Sixth Circuit does not have jurisdiction to review the denial of a downward departure unless it is clear from the record that district court did not believe it had the discretion to depart. In the case, the record was clear that the district court knew it had the discretion to depart, but chose not to do so. Thus, the court concluded that it had no jurisdiction to consider the issue, and affirmed the sentence. Judge Rogers dissented and indicated that, although he agreed with the court’s decision on the departure issue, he would have remanded for resentencing under Booker. Judge Rogers stated that raising the Booker issue in the reply brief was sufficient to preserve the issue for appeal because Booker was not decided until part way through the briefing process. • Booker U.S. v. Adkins, 04-5474 (11/23/05) > Defendant pled guilty to methamphetamine charges and at sentencing the probation department concluded that he was responsible for 9.59 grams of meth. Based upon the drug amount and the fact that the government had filed an enhancement under 21 U.S.C. § 851, defendant was sentenced to a statutory mandatory 10 year term of imprisonment. Defendant did not object to the drug amount or the sentence, but then challenged the sentence on appeal under Booker. * Holding: The court held that defendant’s failure to object to the drug amount at sentencing equated to an admission to it. Accordingly, there was no Sixth Amendment violation and the sentence was affirmed. Judge Moore pointed out in a concurrence that the sentence was affirmed because it was a statutory mandatory minimum sentence, as opposed to a guideline sentence. • Booker U.S. v. Johnson, 04-5110 (11/30/05) > Defendant was charged with RICO violations. The indictment alleged four predicate acts to support the charge, including mail fraud, murder, and two counts of arson. During trial, the district court refused to utilize a special verdict form to require the jury to specifically find which predicate acts were proven beyond a reasonable doubt. Defendant was convicted and at sentencing the district court found by a preponderance of the evidence that the most serious of the predicate acts had been committed (murder) and determined that the proper offense level was accordingly 43. The district court sentenced defendant to the “unadjusted 20-year statutory maximum for RICO convictions.” Defendant appealed and Booker was decided during the pendency of the appeal. * Holding: The court held that the district court decision to sentence defendant based upon the murder predicate violated defendant’s Sixth Amendment rights under Booker. Because the district court refused to submit a special verdict form to the jury, the court had no way of knowing if the jury found that defendant had committed all or only some of the predicate acts in the indictment beyond a reasonable doubt. As such, the court concluded that the appropriate remedy was to assume that the jury found defendant guilty of only the least culpable of the predicate acts (mail fraud) which yielded an offense level of 24. Accordingly, the court vacated the sentence and remanded the case with instructions that defendant be resentenced at offense level 24. • Booker U.S. v. McBride, 04-4347 (1/17/06) > Defendant was convicted of obstruction of justice, internal revenue laws, and bankruptcy fraud. On resentencing after appeal, defendant argued that a downward departure was appropriate based upon the “economic reality principle,” which allows for downward departures where the amount of intended loss is substantially higher than the actual loss, and seriously overstates the severity of the offense. The district court rejected the departure, sentenced defendant within the guideline range, and provided an alternative sentence of the exact same amount in the event that the guidelines were later found unconstitutional. Defendant appealed, and Booker was decided during the pendency of the appeal. Holding: Clarifying its prior holding in Puckett (See P.V., Issue 4), the court first held that the denial of downward departures are generally not reviewable. Nonetheless, the court is required after Booker to consider whether a sentence is reasonable. The court further held that the reasonableness inquiry involves both a procedural and a substantive consideration. The procedural inquiry requires the court to consider whether the district court properly developed a record based upon the factors enumerated in 18 U.S.C. § 3553. The substantive inquiry involves consideration of whether the sentence is actually reasonable in light of the listed factors. In the case, the court found the district court’s development of the record adequate and the sentence to be reasonable. Accordingly, the sentence was affirmed. • Booker U.S. v. Till, 04-2128 (1/20/06) > Defendant was convicted being a felon in possession of a firearm. The district court calculated the sentencing guideline range to be 151 to 188 months, but the charge carried a statutory cap of 120 months. Thus, the court sentenced defendant to 120 months. The district court then, pursuant to Blakely, issued an alternative sentence of 120 months in case the guidelines were found to be unconstitutional. Defendant appealed and Booker was decided during the pendency of the appeal. Holding: The court held that the case did not need to be remanded in light of the alternative sentence issued by the district court. In so holding, the court ruled that, during the post-Blakely, pre-Booker era, district courts were not required to cite the factors pursuant to 18 U.S.C. § 3553, nor were the courts required to make an extensive record of it reasoning in order to enable reasonableness review, as required by post-Booker case law. All that is required to affirm an alternative sentence where an objection is raised solely on the Blakely grounds is for the court of appeals to review the sentence to determine if it is reasonable. The court found defendant’s sentence of 120 months reasonable under the circumstances, and affirmed the sentence. • Booker U.S. v. Alford, 04-6117 (2/10/06) > Defendant was convicted of being a felon in possession of a firearm and the district court sentenced defendant, under the then mandatory guideline scheme, to 120 months, the statutory maximum. Defendant appealed. * Holding: Because defendant preserved the Booker issue in the district court, the court reviewed for harmless error. The court found that although the district court applied the guidelines as mandatory, any error in the sentencing was harmless. Defendant’s guideline range at sentencing was 110-120 months. The district court provided a scathing review of defendant’s record, concluded that he was a danger to society, and determined that the statutory maximum sentence was necessary to protect the public from future crimes of defendant. The court held that it was convinced by the district court’s “actions and explanation” that it would not give a more lenient sentence on remand, and therefore affirmed the sentence. • Booker U.S. v. Johnson, 04-5110 (3/15/06) > Defendant was convicted of RICO violations. Instead of utilizing a special verdict form at trial, the district court made a finding at sentencing as to which predicate acts defendant had committed for the RICO violation, and sentenced defendant to an offense level of 43 based upon a murder predicate. Defendant appealed and in the original panel decision, the Sixth Circuit found a Booker violation and remanded for resentencing. In the remand order, the court directed the district court on resentencing to apply the lowest possible guideline range that was supported by the general jury verdict, which would have been a reduction from a level 43 (found by the district court) to a level 24. (See P.V., Issue # 5). The court subsequently issued an amended decision. * Holding: In the amended opinion, the court removed all of the language discussing the reduction of the guideline offense level from a 43 to a 24. Instead, the court simply held that the government had agreed that a Booker remand was appropriate and remanded the case for resentencing consistent with Booker. • Booker U.S. v. Hochschild, 05-3159 (3/31/06) > Defendant was convicted of interstate travel to commit a sex act and in his plea agreement agreed to waive any constitutional challenge to application of the sentencing guidelines in his case. Defendant appealed and Booker was subsequently decided. * Holding: The court held that Booker provided both constitutional and statutory rights to a defendant. The constitutional rights were based upon the Sixth Amendment, and provided the right to have a jury, and not the judge, decide sentence enhancements. The statutory rights derived from the right to not be sentenced under a mandatory guideline scheme. Thus, the court held that defendant could still obtain a remand for resentencing under Booker because he was sentenced under a mandatory guideline regime, even though he had waived constitutional challenges. Thus, the case was remanded for resentencing. • Booker U.S. v. Brown, 04-6069 (4/14/06) > Defendant was convicted of being a felon in possession of a firearm and qualified as an ACCA. At sentencing, the district court determined that defendant had 53 criminal history points and imposed a four-level upward departure, thus sentencing defendant to 280 months in prison. Defendant appealed and Booker was decided during the pendency of the appeal. * Holding: Ordinarily, sentences imposed pre-Booker are remanded for the district court to reconsider the sentence under an advisory guideline scheme. In the case, the court held that, where the district court imposes an upward departure from the guideline range, the Booker error is rendered harmless as long as the sentence is reasonable. The court ruled that, because the district court “considered the applicable guideline range before departing upward,” and “mentioned deterrence, incapacitation, just punishment, and rehabilitation,” all § 3553 factors, the sentence was reasonable. Therefore, the sentence was affirmed. • Booker U.S. v. Shepherd, 05-5328 (7/10/06) > Defendant was convicted of distributing child pornography and at sentencing claimed that Booker did not apply to the determination of his sentence because all child and sex crimes are governed by 18 USC § 3553(b)(2). Because Booker excised only § 3553(b)(1), which covers any other federal offense, defendant argued that the sentencing guidelines are still mandatory for child pornography offenses. In applying the guidelines, defendant then argued that he could only be held accountable for facts admitted by him or proven to a jury. The district court disagreed, and sentenced defendant to the bottom end of the guideline range. Defendant appealed. * Holding: The court held that, even though Booker technically dealt only with § 3553(b)(1), its holding was equally applicable to child and sex offenses under § 3553(b)(2). Thus, the district court ruling was affirmed. • Booker U.S. v. Cook, 05-2203 (7/20/06) > Defendant was convicted of various federal offenses and the district court imposed a sentence at the middle of the guideline range. The Sixth Circuit then remanded the case for resentencing based upon Booker. On remand, the district court imposed a sentence slightly below the recommended guideline range. Defendant again appealed and claimed that the district court had improperly considered facts that were not found by a jury or admitted by defendant in calculating the guideline range. * Holding: The court held that, after Booker, a district court may consider facts that were not submitted to a jury or admitted by defendant in calculating the guideline range as long as the district court treats the guidelines as non-binding. Thus, the sentence was affirmed. • Booker U.S. v .Brika, 05-4537 (5/23/07) > Defendant was convicted of one count of demanding ransom in regard to a hostage victim, and the jury hung on one count of conspiracy to commit hostage taking. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for the kidnaping itself. Defendant argued on appeal that the district court’s consideration of the kidnaping, upon which the jury hung, violated the Sixth Amendment. * Holding: Relying on the Supreme Court’s decision in Watts v. U.S., the court held that it does not violate the Sixth Amendment for a district court at sentencing to apply a preponderance standard to its consideration of conduct upon which the jury could not reach a verdict. The court ruled that Booker did not change the fundamental principle of Watts that a court may consider uncharged or acquitted conduct at sentencing. The court noted that any due process concerns raised by application of Watts were resolved by the non-mandatory nature of the guidelines and the reasonableness review afforded on appeal. Thus, the sentence was affirmed. • Booker - Retroactive Application Lang v. U.S., 05-2700 (1/24/07) > Defendant was convicted and sentenced for a drug conspiracy, and he appealed. The court of appeals remanded the case for resentencing, and shortly before the new sentencing hearing, Apprendi was decided. Although Booker was not decided prior to his resentencing, defendant concisely argued the principle of Booker at the hearing. Defendant was then resentenced and appealed. After the conclusion of defendant’s appeals, Booker was decided. Defendant then filed a habeas petition in the district court requesting a resentencing and arguing that Booker should apply retroactively. The district court denied the petition, and defendant appealed. * Holding: The court held that, even though defendant succinctly raised the Booker issue in a pre-Booker sentencing hearing, the court would not apply Booker retroactively where defendant had exhausted his appeals before Booker was decided. Relying on prior circuit precedent, the court held that Booker is a procedural, as opposed to a substantive, rule and, as such, it cannot be applied retroactively, even where a defendant had the foresight to argue its principle before its inception. Thus, the district court ruling was affirmed. • Booker - Retroactive Application Nichols v. U.S., 05-6452 (8/16/07) > Defendant was convicted of bank robbery. At the sentencing hearing, which occurred after the Supreme Court’s decision in Apprendi, the district court applied several guideline sentencing enhancements that were based purely on judge-found facts. Defendant objected to the enhancements, but did not argue that the guideline enhancements would violate the Sixth Amendment because they were not submitted to the jury. The district court overruled the objections and sentenced defendant to 405 months in prison, a sentence within the then-mandatory guideline range. Defendant filed an appeal, but raised no issue regarding the guideline enhancements. After Booker was decided, defendant then filed a habeas petition claiming that his counsel was ineffective at sentencing for failing to anticipate Booker based upon the Supreme Court’s decision in Apprendi, and accordingly objected to his guideline sentence enhancements on Sixth Amendment grounds. The district court denied the petition and defendant appealed. * Holding: The court held, for the first time in this type of case in the Sixth Circuit, that defendant’s counsel was ineffective for failing to raise a Booker-type Sixth Amendment challenge to the judge-found guideline enhancements to defendant’s sentence. The court ruled that “any counsel whose performance satisfied an objective standard of reasonableness would have at least been cognizant of possible extensions of Apprendi to challenge the Federal Sentencing Guidelines and the necessity of preserving those challenges in case the Supreme Court struck down the Guidelines while defendant’s case was pending on direct appeal.” Further, the court held that defendant was prejudiced by counsel’s errors because a codefendant in the case actually did preserve the issue long enough on appeal that he eventually received a Booker remand and a lower sentence. Thus, the court vacated defendant’s sentence and remanded the case for resentencing consistent with Booker. • Booker - Acquitted Conduct U.S. v. Mendez, 05-6777 (8/15/07) > Defendant went to trial on a charge of conspiracy to distribute 500 grams or more of meth. The jury found defendant guilty of conspiracy, but held in a special verdict that defendant was responsible for more than 50, but less than 500 grams of meth. At sentencing, applying the preponderance standard, the court held that defendant was responsible under the sentencing guidelines for 2.95 kilograms of meth. Accordingly, the district court increased defendant’s sentence from a range of 63-78 months to a sentence of 151 months. The sentencing occurred pre-Booker and the Sixth Circuit subsequently remanded the case for resentencing in light of Booker. At the resentencing the district court imposed the same sentence. Defendant appealed. * Holding: The court held that, after Booker, the court may enhance a defendant’s sentence under the sentencing guidelines based upon acquitted conduct if the court finds by a preponderance of the evidence that the conduct occurred. All that Booker requires is that the district court apply the guidelines as advisory and non-binding. Thus, the sentence was affirmed. • Booker/Rita United States v. Sexton, 05-6412 (1/11/08) > Defendants were convicted after trial for drug trafficking. At sentencing, the district court determined the drug amount attributable to each defendant based upon the trial testimony. Defendants argued on appeal that their Sixth Amendment rights had been violated where the district court calculated the drug amounts based upon the preponderance of the evidence standard at sentencing. * Holding: First, the court noted that none of the defendants received a sentence higher than the statutory maximum charged in the indictment, and thus neither Apprendi nor Blakely was implicated. Further, even though the district court and not the jury determined the drug amount, Booker and Rita were not violated because the district court applied the guidelines as non-binding. Finally, the court held that retroactive application of Booker’s remedial holding to defendants’ case did not violate defendant’s due process rights, or the Ex Post Facto Clause. Accordingly, the Court found no constitutional violation in the imposition of sentence, and affirmed the district court’s ruling. • Booker - Dismissed Conduct U.S. v. Conway, 06-4083 (1/23/08) > Defendant was charged with possession of a sawed-off shotgun, felon in possession of a firearm, and felon in possession of ammunition. Pursuant to a plea agreement, defendant pled guilty to the possession of ammunition charge in return for dismissal of the two charges related to the sawed-off shotgun. At sentencing, the district court imposed a 12 level enhancement for defendant’s possession of the sawed-off shotgun. Defendant argued on appeal that the Sixth Amendment right to jury trial prohibits the district court’s consideration of dismissed conduct at sentencing. * Holding: The court held that the central premise of plea agreements is that they waive a defendant’s Sixth Amendment right to a jury trial. Consistent with that premise, the court found that defendant’s plea agreement made it clear that the district court would determine defendant’s sentence and whether he possessed the shotgun or not. The court emphasized that the plea agreement (1) acknowledged Booker and the non-mandatory nature of the guidelines, (2) indicated defendant’s awareness the he could receive up to the statutory maximum, and (3) acknowledged that defendant contested that he possessed the shotgun. These provisions indicated that defendant knew that the plea agreement placed the issue of the shotgun possession squarely within the district court’s discretion at sentencing. Thus, the sentence was affirmed. • Booker - Acquitted Conduct U.S. v. White, 05-6596 (12/24/08) > At sentencing, defendant received a 14-year upward adjustment to his sentencing guideline range based upon conduct for which defendant was acquitted after trial. Defendant appealed and the original Sixth Circuit panel affirmed. The court granted en banc review. * Holding: The en banc court held that a district court may increase a defendant’s sentence based on acquitted conduct as long as the conduct is proven by a preponderance of the evidence and the sentence is not above the statutory maximum based on the jury verdict. Accordingly, defendant’s sentence was affirmed. • Booker/Apprendi U.S.v. Thompson, 06-6233 (2/11/08) > Defendant pled guilty to drug trafficking and carrying a firearm in relation to drug trafficking. Although the indictment alleged only that defendant “carried and used” the firearm (which would yield a five year mandatory sentence) the district court applied a ten year mandatory sentence because it concluded that defendant was responsible for a codefendant’s discharge of a firearm. Defendant appealed and argued that Apprendi, Blakely and Booker precluded the enhancement of defendant’s mandatory minimum. * Holding: Relying on the Supreme Court’s decision in Harris, the court held that the various subparagraphs of 18 USC § 924(c) are sentencing enhancements, not elements of the offense that must be pled in the indictment. Accordingly, the court found that enhancement of defendant’s sentence did not violate the Sixth Amendment and that the court had no authority to conclude that Blakely and Booker implicitly overruled Harris. Thus, the court found no Sixth Amendment violation. The court did, however, find a due process violation in the procedure and reversed the sentence on this basis. (See supra, V. Fifth Amendment). • Booker/Apprendi U.S. v. Mabry, 06-2324 (3/3/08) > Defendant was an executive officer of the carpenter’s union who was charged with soliciting and obtaining improper discounts from union contractors for services in violation of 29 USC § 186. The statute provides a one-year statutory maximum sentence if the violation does not exceed $1,000. Defendant went to trial, and during the charge conference with the district court, defendant’s counsel stipulated that “if the jury returned a verdict of guilty, it would be presumed that [defendant] received a thing of value of at least one thousand dollars.” Defendant was convicted, but the jury made no specific finding about the dollar amount involved. The district court sentenced defendant to two years in prison. Defendant appealed and argued that the sentence violated Booker and Apprendi because he was sentenced above the statutory maximum of one year and the jury did not make the necessary finding that the loss amount was above $1,000. * Holding: The court held that Booker and Apprendi prohibit a district court from sentencing a defendant above a statutory maximum where the relevant facts warranting the higher sentence are neither found by a jury or admitted by the defendant. The court found, however, that defendant’s stipulation at the charge conference that a guilty verdict would mean that the violation of § 186 exceeded $1,000 was sufficient to support the increased sentence. Accordingly, defendant’s sentence was affirmed. • Right to Jury Trial/Apprendi Chontos v. Berghuis, 08-1031 (11/10/09) > Defendant was convicted in state court for first degree criminal sexual conduct and, as a result, faced the possibility of life in prison. The state court imposed a sentence of 225 months to 40 years imprisonment. Defendant argued on appeal that the trial court violated his right to jury trial by finding facts at sentencing that increased his mandatory minimum sentence. Defendant lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed. * Holding: The court held that, pursuant to Apprendi, a defendant’s right to jury trial is only violated if judge-found facts at sentencing increase the statutory maximum penalty. Further, the court confirmed that the sentencing court may rely on acquitted conduct in making its sentencing determinations. Accordingly, the district court’s ruling was affirmed. • Right to Jury Trial - Acquitted Conduct U.S. v. Benson, 08-1131 (1/12/10) > Defendant was convicted of participating in a drug conspiracy. The jury found defendant responsible for less than 5 kilos of powder cocaine, at least 50 grams of crack, and no marijuana. At sentencing, the district court determined by a preponderance of the evidence that defendant was actually responsible for 5.85 kilos of powder, 1 kilo of crack, and 80 pounds of marijuana. Defendant appealed his sentence as being in violation of the Sixth Amendment. * Holding: Pursuant to the court’s en banc decision in White (See P.V. Issue #23), the court held that a district court may consider acquitted conduct at sentencing so long as it is proven by a preponderance of the evidence. The court found that the extra drug amounts were supported by the evidence, and accordingly, affirmed defendant’s sentence. • Booker - Restitution U.S. v. Sosebee, 03-1923 (8/12/05) > Defendant pled guilty to misprision of felony pursuant to a plea bargain. The underlying conduct involved defendant defrauding her supplier of products out of over 2 million dollars. The district court ordered defendant to pay restitution to the supplier in an amount in excess of 2 million. Defendant appealed challenging the restitution order in light of Booker. * Holding: Deciding an open question in the Sixth Circuit, the court held that Booker does not apply to restitution orders. The court concluded that restitution orders are governed by statute and do not rely on the sentencing guidelines for their validity. The statute itself (18 U.S.C. § 3663(f)(1)(A)) mandates that the sentencing judge determine the amount of restitution to be paid. Thus, Booker provides no impediment to the district court setting a restitution order, even though the sentencing guidelines are now non-mandatory. • Booker - Forfeiture U.S. v. Hall, 04-5047 (5/31/05) > As part of a bank fraud conviction, defendant was ordered to forfeit the proceeds of the illegal activity. Defendant challenged on appeal that, pursuant to Booker and Apprendi, the government could not obtain a forfeiture without proving the necessary elements to a jury beyond a reasonable doubt. * Holding: The court held that the Sixth Amendment rights of Booker and Apprendi do not apply to forfeiture proceedings. • Right to Jury Trial - Forfeiture U.S. v. McAuliffe, 06-3016 (6/22/07) > Defendant was indicted for arson and mail fraud, and the indictment also contained a forfeiture allegation. At the close of the government’s case at trial, defendant agreed to deal with the issue of forfeiture at sentencing. The district court imposed the forfeiture at the sentencing hearing. Defendant argued on appeal that his Sixth Amendment right to jury trial had been violated in relation to the forfeiture allegation. * Holding: The court held the Sixth Amendment does not protect a defendant’s right to jury trial in regard to a forfeiture allegation in an indictment. Accordingly, the forfeiture of defendant’s property was affirmed.
Contact Us \| ©2005 Federal Public Defender of Southern Ohio

I.I. Specific Offenses

II. Sentencing Guidelines

III. Evidence

IV. Fourth Amendment

V. Fifth Amendment

VI. Sixth Amendment >>

VII. Other Constitutional Rulings

VIII. Defenses

IX. Plea & Sentencing Hearings

X. Jury Issues

XI. Probation & Supervised Release

XII. Appeal

XIII. Post-Conviction Remedies

Sixth Amendment:

A. Right to Jury Trial/Booker
B. Confrontation Clause
C. Speedy Trial
D. Right to Counsel/Self Representation
E. Indictment - Variance/Deplicity
F. Miscellaneous Sixth Amendment

Right to Jury Trial/Booker

Supreme Court Decisions

   • Blakely - Harmless Error

Washington v. Recuenco, 05-83 (6/26/06)

    > Defendant was charged under Washington law with assault in the second degree. At trial, the judge provided a special verdict form wherein the jury could find that defendant committed the offense with a “deadly weapon.” The jury found defendant guilty and also found that he used a deadly weapon. At sentencing, instead of imposing a one year enhancement for the “deadly weapon” finding, the court imposed a three year enhancement for the use of a firearm. Defendant appealed and won in the state court, which found that Blakely error is structural and required automatic reversal. The state appealed and the Supreme Court granted certiorari.

    * Holding: In Blakely, the Supreme Court held that a trial court may not increase a statutory maximum sentence beyond what is mandated by the facts found in a jury verdict. In this case, the Court held that Blakely error is subject to harmless error review. Thus, even though the jury did not specifically make a finding that defendant used a firearm (as opposed to a dangerous weapon), the Court held that such an error was harmless and affirmed the enhanced sentence.

    • Right to Jury Trial - Apprendi/Blakely

Cunningham v. California, 05-6551 (2/22/07)

    > Defendant was convicted in California state court of continuous sexual abuse of a minor under the age of 14. California’s sentencing scheme for this offense required the trial judge to impose a middle term sentence of 12 years, unless the judge found (1) sufficient aggravating factors, in which case the required sentence was 16 years, or (2) sufficient mitigating factors, in which case the required sentence was 6 years. The aggravating or mitigating factors included facts about the defendant, facts about the offense, and any other fact reasonably related to the decision being made. In defendant’s case, the judge found sufficient aggravating facts by a preponderance of the evidence and sentenced defendant to 16 years. Defendant lost his appeals in state court, and the Supreme Court granted certiorari.

    * Holding: Relying on Apprendi and Blakely, the Court held that California’s sentencing system violated defendant’s right to trial by jury. Under the California system, the trial court was required to make findings of fact that increased defendant’s middle term limit, without the facts being submitted to a jury and proven beyond a reasonable doubt. This system was violative of defendant’s Sixth Amendment rights, and accordingly, the Court struck down the California sentencing scheme and vacated defendant’s sentence.

    • Right to Jury Trial/Apprendi

Oregon v. Ice, 07-901 (1/14/09)

    > Defendant was convicted in state court for two burglaries and four sex crimes. At sentencing, pursuant to Oregon’s sentencing statutes, the trial court made factual findings that permitted the court to run the sentences consecutively. Defendant argued on appeal that Apprendi prohibited the court, as opposed to the jury, from making factual findings that permitted the imposition of consecutive sentences. Defendant lost his state court appeals, and the Supreme Court granted certiorari.

    * Holding: The Court held that Apprendi does not require that a jury make findings regarding factual issues related to whether sentences are imposed consecutively or concurrently. The Court found that such issues were historically within the province of the judge, not the jury, and that Apprendi did not alter this longstanding precedent. Accordingly, defendant sentence was affirmed.

Sixth Circuit Decisions

• Booker

U.S. v. Hamm, 03-5658 (3/8/05)

> Defendant was charged with using the internet to induce a minor to travel across state lines for purposes of sexual activity. Defendant’s sentencing guideline range was 33-41 months, and the court imposed a 33 month sentence. Defendant did not raise Booker issues at sentencing, but did request a downward departure.

* Holding: The court found plain error based upon Booker. The court held that, given that the district court had imposed the low end of the guideline range and that it had shown apparent sympathy for the defendant at the sentencing hearing, the district court may have given a lower sentence if it knew that the sentencing guidelines were non-mandatory. Thus, the case was remanded for resentencing.

    • Booker

U.S. v. McCraven, 03-6311 (3/17/05)

> Defendant was convicted of drug and weapons charges, and his guideline range at sentencing was 84-105 months. This calculation included a two-level enhancement under U.S.S.G. § 2D1.1(b)(1) for possessing the firearm in relation to the narcotics. Defendant agreed at the plea hearing that he had possessed the firearm. Defendant did not challenge the guideline calculation at sentencing, but he did request a downward departure. The district court granted the departure and sentenced defendant to 72 months. During the pendency of the appeal, the Supreme Court decided Booker.

    * Holding: The court determined that the case should be remanded for resentencing even though there was no Sixth Amendment violation in the sentence. The two-level enhancement for the gun did not violate Booker because the defendant had admitted to the gun at the plea hearing. Nonetheless, the court held that remand was appropriate so that the district court could reconsider the sentence in light of the fact that the guidelines are now advisory.

    •Booker

U.S. v. Jackson, 03-2493 (3/24/05)

    > Defendant was sentenced for being a felon in possession of a firearm and received a two-level enhancement under the guidelines because the firearm was stolen. Defendant had not admitted at the plea hearing that the gun was stolen. Defendant was sentenced to 108 months, which was the middle of the guideline range. During the pendency of the appeal, Booker was decided.

    * Holding: The court found plain error based upon Booker. Even though defendant was sentenced to the middle of the guideline range, the court found a remand was necessary because the district judge commented that “the guidelines were a failure and that he could not depart from them even if he wanted to.”

    • Booker

U.S. v. Moncivais, 02-6457 (3/24/05)

    > Defendant’s guideline range was increased at sentencing from a range of 235-293 months to a range of 360-life based upon relevant conduct drug amounts and a leadership-role enhancement. The district court sentenced defendant to 360 months, and while the case was pending on appeal, Booker was decided.

    * Holding: The court found plain error because the relevant conduct and leadership-role enhancements violated the Sixth Amendment pursuant to Booker. Thus, the case was remanded for resentencing under the non-mandatory guideline scheme.

    • Booker

U.S. v. Forrest, 03-5672 (3/30/05)

    > Defendant was convicted of a Hobbs Act robbery and of brandishing a firearm during the commission of a crime of violence. The district court granted defendant a downward departure at sentencing based upon the fact that the government had indicted defendant federally only because he refused to plead guilty to the robbery charge in state court and because the government did not normally prosecute Hobbs Act robberies except in cases involving organized crime, gang activity, or wide-ranging schemes. The government appealed, and during the pendency of the case on appeal, Booker was decided.

    * Holding: The court held that even after Booker, district courts must consider the appropriate sentencing guideline range. Thus, even though judges are no longer bound by the guidelines, the district court must first consider the proper guideline range, and must consider “what the guidelines say about departing from the guidelines sentencing range.” After determining the guideline range, and whether a departure is appropriate, the district court may then consider whether it will follow the guidelines or not, and state its reasons therefore. In defendant’s case, the court thus analyzed the appropriateness of the downward departure and found that the district court erred in holding that the departure was appropriate. A district court may not focus on whether the government’s decision to prosecute someone was abnormal, but only on whether the defendant’s conduct was outside the heartland. In defendant’s case, his conduct was clearly within the heartland of robberies punishable by the Hobbs Act, and accordingly, no departure was appropriate. The sentence was thus reversed and the case remanded for consideration in light of Booker.

    • Booker

U.S. v. Webb, 03-6110 (4/6/05)

    > Defendant pled guilty to one count of possession of a machine gun and in the plea agreement stipulated to the appropriate sentencing guideline range. At sentencing, the district court followed the recommendation in the plea agreement and sentenced defendant to the top end of the guideline range. During the pendency of the appeal, Booker was decided.

    *Holding: The court held that no plain error occurred in the sentencing of defendant because he was not prejudiced by being sentenced under the then mandatory guidelines scheme. The court acknowledged that, pursuant to its prior holding in U.S. v. Barnett, prejudice to a defendant is presumed where a district court sentences a defendant under the previously mandatory guidelines scheme. Nonetheless, the court found that the presumption was overcome under the facts of defendant’s case because (1) defendant agreed to the sentencing range in the plea agreement, (2) the district court considered an upward departure at sentencing and said that the defendant was a menace, and (3) the district court imposed a sentence at the top end of the guideline range.

     The court then determined, pursuant to Booker, that the sentence was not unreasonable. The court declined to impose a rigid test for evaluating reasonableness, but based its determination upon the fact that the district court had appropriately considered the guidelines and the other factors in 18 U.S.C. § 3553(a) in fashioning the sentence. The court, in footnotes, commented on two lingering questions after Booker: (1) the court specifically declined to address whether a district court must always calculate the “precise appropriate guideline range” in order to comply with Booker; and (2) the court noted that a sentence within the applicable guideline range is not per-se reasonable.

    • Booker

U.S. v. Trammel, 03-6652 (4/8/05)

    > Defendant was convicted of drug and weapon charges, and the district court sentenced him to the bottom end of the guideline range. During the pendency of the appeal, Booker was decided.

    * Holding: Although no other error occurred in the sentencing process, the court remanded the case for resentencing under Booker. Pursuant to the court’s prior holding in U.S. v. Barnett, the court will presume prejudice where a district court sentences a defendant under the then-existing mandatory guideline scheme. In defendant’s case, the court found nothing in the record to rebut the presumption of prejudice, particularly where the district court had sentenced defendant to the bottom end of the guideline range and had stated at the sentencing that the low end was appropriate because of the defendant’s 10-year old son at home.

    • Booker

U.S. v. Jones, 03-6239 (4/15/05)

    > Defendant was convicted after trial for a meth conspiracy, and was sentenced to 262 months in prison. The sentence was based upon amounts of ephedrine located at defendant’s home, but such amounts were not found by the jury. Defendant did not object to the drug amount, nor did he challenge the application of the guidelines at sentencing. During the pendency of the appeal, the Supreme Court decided Booker.

    * Holding: The court found plain error in the application of the sentencing guidelines to the case and in the calculation of a sentence based upon drug amounts not found by a jury. Accordingly, the court remanded the case for resentencing pursuant to Booker.

    • Booker

U.S. v. Hudson, 04-5096 (4/22/05)

    > Defendant was convicted of being a felon in possession of a firearm and his sentencing guideline range was 46-57 months. The district court imposed a sentence of 53 months, the middle of the guideline range. During the pendency of the appeal, Booker was decided.

    * Holding: Relying on the prior Sixth Circuit decision in Barnett, the court held that, even though there was no Sixth Amendment violation, the case had to be remanded because the district court had sentenced based upon a mandatory guideline scheme. The court noted that Barnett requires the court to presume prejudice where a court mistakenly applies the guidelines as mandatory. The court found no clear and specific evidence to rebut the presumption and accordingly remanded the case for resentencing consistent with Booker.

    • Booker

United States v. Smith, 04-5359 (4/22/05)

    > Defendant was charged with being a felon in possession of a firearm. At trial, testimony was elicited that defendant had actually been involved in a robbery, but the testimony was equivocal. Defendant was convicted, but at sentencing, the district court sentenced him based upon the alleged robbery. This increased sentence was based upon a cross reference in the gun guideline (§ 2K2.1) that allows a district court to sentence a defendant for conduct that is proven by a preponderance of the evidence, i.e., the robbery. Accordingly, defendant’s sentencing range was increased from 37-46 months for the gun, to 110-137 months for the robbery. Defendant was sentenced to 120 months. During the pendency of the appeal, Booker was decided.

    * Holding: The court held that application of the cross reference to the robbery guideline violated defendant’s Sixth Amendment rights pursuant to Booker because defendant was sentenced based upon conduct that was neither pled in the indictment nor proven to the jury beyond a reasonable doubt. Accordingly, the court remanded the case for resentencing under the non-mandatory guideline scheme established by Booker.

    • Booker

U.S. v. Alva, 03-5175 (4/29/05)

    > Defendant was convicted of cocaine distribution. At sentencing, the district court determined that defendant qualified for a two-level enhancement for relevant conduct drug amounts, and a two-level enhancement for obstruction of justice. Based upon the enhancements, defendant’s sentencing range was increased from 121-151 months to 188-235 months. The court sentenced defendant to 188 months and commented that the sentence seemed extraordinary in light of defendant’s criminal history category of I. During the pendency of the appeal, Booker was decided.

    * Holding: The court held that application of the two sentencing enhancements violated defendant’s Sixth Amendment rights. Further, even absent a Sixth Amendment violation, the court presumes prejudice where a defendant is sentenced under a mandatory guideline regime. Thus, the case was remanded for resentencing in light of Booker.

     • Booker

U.S. v. Poole, 04-5016 (5/10/05)

    > Defendant was convicted of being a felon in possession of a firearm, possession of cocaine with intent to distribute, and possession of a firearm in relation to a drug trafficking crime. At sentencing, the district court imposed a sentence of 322 months in prison. During the pendency of the appeal, Booker was decided.

    * Holding: The court found no Sixth Amendment violation in defendant’s sentence because any enhancements defendant received at sentencing beyond his convictions were based upon his criminal history. The court held that Booker’s Sixth Amendment bar does not apply to the fact of a prior conviction. Nonetheless, pursuant to the court’s prior decision in U.S. v. Barnett, prejudice to a defendant is presumed where the district court sentences under a mandatory guideline scheme. The court found no “clear and specific” evidence to rebut the presumption, and reversed the sentence, remanding the case for resentencing in light of Booker.

    • Booker

U.S. v. Jackson, 04-3074 (5/24/05)

    > Defendant pled guilty to being a felon in possession of a firearm, and at sentencing the district court awarded defendant a downward departure from a sentencing range of 27-33 months down to a sentence of probation, with 6 months of house arrest. The court based its departure upon several discouraged and prohibited factors under the guidelines, and provided little reasoning or rationale as to the grounds for departing or the extent of the departure. The government appealed, and during the pendency of the appeal, Booker was decided.

    * Holding: The court held that the standard of review for a sentence after Booker is reasonableness. The court ruled that, after Booker, a district court must articulate its reasons for the sentence imposed based upon its consideration of the sentencing factors listed in 18 U.S.C. § 3553. This includes “acknowledgment of the defendant’s applicable guideline range as well as a discussion of the reasonableness of a variation from that range.” Further, the court must consider the “advisory provisions of the guidelines” and the other factors identified in § 3553. The court found that the district court had not adequately developed its reasons for the variation from the guidelines, and accordingly reversed the sentence and remanded for resentencing in light of Booker.

    • Booker

U.S. v. Hollingsworth, 04-6172 (7/11/05)

    > Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court increased his guideline sentencing range under U.S.S.G. § 2K2.1(a)(2) because he had a prior conviction that qualified as a “crime of violence.” Defendant appealed, arguing that a determination as to whether a prior conviction is a crime of violence must, pursuant to Booker, be submitted to a jury and proven beyond a reasonable doubt.

    * Holding: The court held that a district court’s determination as to whether a prior offense is a crime of violence does not violate Booker. In so holding, the court relied upon the exception from Apprendi and Booker that the fact of a prior conviction may be a proper basis for a sentence enhancement without being submitted to a jury. The court thus concluded that the determination of whether the prior offense is violent is also squarely within the province of the district court. Nonetheless, the case was remanded for resentencing in light of Booker’s mandate that the guidelines are advisory.

    • Booker

U.S. v. Amiker, 03-6001 (7/11/05)

    > Defendant was charged in a narcotics case, and entered into a plea agreement wherein he agreed that the sentencing guidelines applied to his case. At sentencing, the district court enhanced his sentence for being a leader and for possession of a firearm, neither of which were agreed to at the plea hearing. Defendant appealed.

    * Holding: The court found that the application of the two enhancements for leadership and a firearm clearly violated defendant’s Sixth Amendment rights under Booker because such enhancements were not agreed to by defendant at the plea hearing. The court went on to hold that the stipulation by the defendant in the plea agreement that the sentencing guidelines applied to his case did not prevent the availability of a remand based upon Booker. In so holding, the court distinguished the recent Sixth Circuit case U.S. v. Bradley. (See P.V., Issue 1). In Bradley, the court held that a defendant cannot appeal based upon a Booker issue if the plea agreement contains an otherwise valid appeal waiver. In this case, however, there was no appeal waiver in the plea agreement. The court concluded that Bradley was a narrow holding, only addressing appeal waivers, and that it did not prohibit a Booker remand if the defendant agreed to the application of the sentencing guidelines in her plea agreement.

    • Booker

U.S. v. Christopher, 04-3946 (7/28/05)

    > Defendant was convicted of four counts of mail fraud, and the district court sentenced him to 33 months in prison. The Sixth Circuit reversed the sentence, finding error in the loss calculation. Upon resentencing, the district court reduced defendant’s offense level by 1 point, and sentenced defendant to 30 months, the bottom end of the guideline range. Because Blakely had been decided, the district court issued an alternative statutory sentence of the same amount – 30 months. Defendant appealed.

    * Holding: The court held that, because the district court had imposed an alternative sentence, any error in sentencing was harmless. The court ruled that the district court’s imposition of an alternative sentence made clear the district court’s intention to give defendant the same sentence even if the guidelines were not mandatory. Further, the court found the sentence to be reasonable. Thus, the case was affirmed.

    • Booker

U.S. v. Chandler, 04-6203 (8/16/05)

    > Defendant was convicted of being a felon in possession of a firearm, and at sentencing the district court concluded that defendant’s offense level was 20, pursuant to U.S.S.G. § 2K2.1. This level was based upon the district court’s conclusion that defendant’s prior conviction for facilitation of a felony was a crime of violence under the guidelines. Based upon such computation, the court sentenced defendant to 37 months in prison, the bottom end of the guideline range. The district court then provided an alternative statutory sentence of 37 months, in the event the guidelines were later found unconstitutional. Defendant appealed.

    * Holding: The court held that, because the district court had imposed an alternative sentence, the court’s review was limited to reasonableness. The court ruled that the district court had appropriately considered the applicable sentencing guideline range, and had expressed some consideration of the statutory factors. Accordingly, the sentence was affirmed.

    • Booker

U.S. v. Puckett, 04-5988 (9/6/05)

    > Defendant was convicted of narcotics and weapons charges and at sentencing he requested a downward departure from the sentencing guidelines range. The district court denied the downward departure request, and defendant appealed. After defendant filed his proof brief in the Sixth Circuit, the Supreme Court decided Booker. Defendant then requested a remand pursuant to Booker in his reply brief.

    * Holding: The court held that, even after Booker, the Sixth Circuit does not have jurisdiction to review the denial of a downward departure unless it is clear from the record that district court did not believe it had the discretion to depart. In the case, the record was clear that the district court knew it had the discretion to depart, but chose not to do so. Thus, the court concluded that it had no jurisdiction to consider the issue, and affirmed the sentence. Judge Rogers dissented and indicated that, although he agreed with the court’s decision on the departure issue, he would have remanded for resentencing under Booker. Judge Rogers stated that raising the Booker issue in the reply brief was sufficient to preserve the issue for appeal because Booker was not decided until part way through the briefing process.

    • Booker

U.S. v. Adkins, 04-5474 (11/23/05)

    > Defendant pled guilty to methamphetamine charges and at sentencing the probation department concluded that he was responsible for 9.59 grams of meth. Based upon the drug amount and the fact that the government had filed an enhancement under 21 U.S.C. § 851, defendant was sentenced to a statutory mandatory 10 year term of imprisonment. Defendant did not object to the drug amount or the sentence, but then challenged the sentence on appeal under Booker.

    * Holding: The court held that defendant’s failure to object to the drug amount at sentencing equated to an admission to it. Accordingly, there was no Sixth Amendment violation and the sentence was affirmed. Judge Moore pointed out in a concurrence that the sentence was affirmed because it was a statutory mandatory minimum sentence, as opposed to a guideline sentence.

    • Booker

U.S. v. Johnson, 04-5110 (11/30/05)

    > Defendant was charged with RICO violations. The indictment alleged four predicate acts to support the charge, including mail fraud, murder, and two counts of arson. During trial, the district court refused to utilize a special verdict form to require the jury to specifically find which predicate acts were proven beyond a reasonable doubt. Defendant was convicted and at sentencing the district court found by a preponderance of the evidence that the most serious of the predicate acts had been committed (murder) and determined that the proper offense level was accordingly 43. The district court sentenced defendant to the “unadjusted 20-year statutory maximum for RICO convictions.” Defendant appealed and Booker was decided during the pendency of the appeal.

    * Holding: The court held that the district court decision to sentence defendant based upon the murder predicate violated defendant’s Sixth Amendment rights under Booker. Because the district court refused to submit a special verdict form to the jury, the court had no way of knowing if the jury found that defendant had committed all or only some of the predicate acts in the indictment beyond a reasonable doubt. As such, the court concluded that the appropriate remedy was to assume that the jury found defendant guilty of only the least culpable of the predicate acts (mail fraud) which yielded an offense level of 24. Accordingly, the court vacated the sentence and remanded the case with instructions that defendant be resentenced at offense level 24.

    • Booker

U.S. v. McBride, 04-4347 (1/17/06)

    > Defendant was convicted of obstruction of justice, internal revenue laws, and bankruptcy fraud. On resentencing after appeal, defendant argued that a downward departure was appropriate based upon the “economic reality principle,” which allows for downward departures where the amount of intended loss is substantially higher than the actual loss, and seriously overstates the severity of the offense. The district court rejected the departure, sentenced defendant within the guideline range, and provided an alternative sentence of the exact same amount in the event that the guidelines were later found unconstitutional. Defendant appealed, and Booker was decided during the pendency of the appeal.

    *Holding: Clarifying its prior holding in Puckett (See P.V., Issue 4), the court first held that the denial of downward departures are generally not reviewable. Nonetheless, the court is required after Booker to consider whether a sentence is reasonable. The court further held that the reasonableness inquiry involves both a procedural and a substantive consideration. The procedural inquiry requires the court to consider whether the district court properly developed a record based upon the factors enumerated in 18 U.S.C. § 3553. The substantive inquiry involves consideration of whether the sentence is actually reasonable in light of the listed factors. In the case, the court found the district court’s development of the record adequate and the sentence to be reasonable. Accordingly, the sentence was affirmed.

    • Booker

U.S. v. Till, 04-2128 (1/20/06)

    > Defendant was convicted being a felon in possession of a firearm. The district court calculated the sentencing guideline range to be 151 to 188 months, but the charge carried a statutory cap of 120 months. Thus, the court sentenced defendant to 120 months. The district court then, pursuant to Blakely, issued an alternative sentence of 120 months in case the guidelines were found to be unconstitutional. Defendant appealed and Booker was decided during the pendency of the appeal.

    * Holding: The court held that the case did not need to be remanded in light of the alternative sentence issued by the district court. In so holding, the court ruled that, during the post-Blakely, pre-Booker era, district courts were not required to cite the factors pursuant to 18 U.S.C. § 3553, nor were the courts required to make an extensive record of it reasoning in order to enable reasonableness review, as required by post-Booker case law. All that is required to affirm an alternative sentence where an objection is raised solely on the Blakely grounds is for the court of appeals to review the sentence to determine if it is reasonable. The court found defendant’s sentence of 120 months reasonable under the circumstances, and affirmed the sentence.

    • Booker

U.S. v. Alford, 04-6117 (2/10/06)

    > Defendant was convicted of being a felon in possession of a firearm and the district court sentenced defendant, under the then mandatory guideline scheme, to 120 months, the statutory maximum. Defendant appealed.

    * Holding: Because defendant preserved the Booker issue in the district court, the court reviewed for harmless error. The court found that although the district court applied the guidelines as mandatory, any error in the sentencing was harmless. Defendant’s guideline range at sentencing was 110-120 months. The district court provided a scathing review of defendant’s record, concluded that he was a danger to society, and determined that the statutory maximum sentence was necessary to protect the public from future crimes of defendant. The court held that it was convinced by the district court’s “actions and explanation” that it would not give a more lenient sentence on remand, and therefore affirmed the sentence.

    • Booker

U.S. v. Johnson, 04-5110 (3/15/06)

    > Defendant was convicted of RICO violations. Instead of utilizing a special verdict form at trial, the district court made a finding at sentencing as to which predicate acts defendant had committed for the RICO violation, and sentenced defendant to an offense level of 43 based upon a murder predicate. Defendant appealed and in the original panel decision, the Sixth Circuit found a Booker violation and remanded for resentencing. In the remand order, the court directed the district court on resentencing to apply the lowest possible guideline range that was supported by the general jury verdict, which would have been a reduction from a level 43 (found by the district court) to a level 24. (See P.V., Issue # 5). The court subsequently issued an amended decision.

    * Holding: In the amended opinion, the court removed all of the language discussing the reduction of the guideline offense level from a 43 to a 24. Instead, the court simply held that the government had agreed that a Booker remand was appropriate and remanded the case for resentencing consistent with Booker.

    • Booker

U.S. v. Hochschild, 05-3159 (3/31/06)

    > Defendant was convicted of interstate travel to commit a sex act and in his plea agreement agreed to waive any constitutional challenge to application of the sentencing guidelines in his case. Defendant appealed and Booker was subsequently decided.

    * Holding: The court held that Booker provided both constitutional and statutory rights to a defendant. The constitutional rights were based upon the Sixth Amendment, and provided the right to have a jury, and not the judge, decide sentence enhancements. The statutory rights derived from the right to not be sentenced under a mandatory guideline scheme. Thus, the court held that defendant could still obtain a remand for resentencing under Booker because he was sentenced under a mandatory guideline regime, even though he had waived constitutional challenges. Thus, the case was remanded for resentencing.

    • Booker

U.S. v. Brown, 04-6069 (4/14/06)

    > Defendant was convicted of being a felon in possession of a firearm and qualified as an ACCA. At sentencing, the district court determined that defendant had 53 criminal history points and imposed a four-level upward departure, thus sentencing defendant to 280 months in prison. Defendant appealed and Booker was decided during the pendency of the appeal.

    * Holding: Ordinarily, sentences imposed pre-Booker are remanded for the district court to reconsider the sentence under an advisory guideline scheme. In the case, the court held that, where the district court imposes an upward departure from the guideline range, the Booker error is rendered harmless as long as the sentence is reasonable. The court ruled that, because the district court “considered the applicable guideline range before departing upward,” and “mentioned deterrence, incapacitation, just punishment, and rehabilitation,” all § 3553 factors, the sentence was reasonable. Therefore, the sentence was affirmed.

    • Booker

U.S. v. Shepherd, 05-5328 (7/10/06)

    > Defendant was convicted of distributing child pornography and at sentencing claimed that Booker did not apply to the determination of his sentence because all child and sex crimes are governed by 18 USC § 3553(b)(2). Because Booker excised only § 3553(b)(1), which covers any other federal offense, defendant argued that the sentencing guidelines are still mandatory for child pornography offenses. In applying the guidelines, defendant then argued that he could only be held accountable for facts admitted by him or proven to a jury. The district court disagreed, and sentenced defendant to the bottom end of the guideline range. Defendant appealed.

    * Holding: The court held that, even though Booker technically dealt only with § 3553(b)(1), its holding was equally applicable to child and sex offenses under § 3553(b)(2). Thus, the district court ruling was affirmed.

    • Booker

U.S. v. Cook, 05-2203 (7/20/06)

    > Defendant was convicted of various federal offenses and the district court imposed a sentence at the middle of the guideline range. The Sixth Circuit then remanded the case for resentencing based upon Booker. On remand, the district court imposed a sentence slightly below the recommended guideline range. Defendant again appealed and claimed that the district court had improperly considered facts that were not found by a jury or admitted by defendant in calculating the guideline range.

    * Holding: The court held that, after Booker, a district court may consider facts that were not submitted to a jury or admitted by defendant in calculating the guideline range as long as the district court treats the guidelines as non-binding. Thus, the sentence was affirmed.

    • Booker

U.S. v .Brika, 05-4537 (5/23/07)

    > Defendant was convicted of one count of demanding ransom in regard to a hostage victim, and the jury hung on one count of conspiracy to commit hostage taking. At sentencing, the district court found by a preponderance of the evidence that defendant was responsible for the kidnaping itself. Defendant argued on appeal that the district court’s consideration of the kidnaping, upon which the jury hung, violated the Sixth Amendment.

    * Holding: Relying on the Supreme Court’s decision in Watts v. U.S., the court held that it does not violate the Sixth Amendment for a district court at sentencing to apply a preponderance standard to its consideration of conduct upon which the jury could not reach a verdict. The court ruled that Booker did not change the fundamental principle of Watts that a court may consider uncharged or acquitted conduct at sentencing. The court noted that any due process concerns raised by application of Watts were resolved by the non-mandatory nature of the guidelines and the reasonableness review afforded on appeal. Thus, the sentence was affirmed.

    • Booker - Retroactive Application

Lang v. U.S., 05-2700 (1/24/07)

    > Defendant was convicted and sentenced for a drug conspiracy, and he appealed. The court of appeals remanded the case for resentencing, and shortly before the new sentencing hearing, Apprendi was decided. Although Booker was not decided prior to his resentencing, defendant concisely argued the principle of Booker at the hearing. Defendant was then resentenced and appealed. After the conclusion of defendant’s appeals, Booker was decided. Defendant then filed a habeas petition in the district court requesting a resentencing and arguing that Booker should apply retroactively. The district court denied the petition, and defendant appealed.

    * Holding: The court held that, even though defendant succinctly raised the Booker issue in a pre-Booker sentencing hearing, the court would not apply Booker retroactively where defendant had exhausted his appeals before Booker was decided. Relying on prior circuit precedent, the court held that Booker is a procedural, as opposed to a substantive, rule and, as such, it cannot be applied retroactively, even where a defendant had the foresight to argue its principle before its inception. Thus, the district court ruling was affirmed.

    • Booker - Retroactive Application

Nichols v. U.S., 05-6452 (8/16/07)

    > Defendant was convicted of bank robbery. At the sentencing hearing, which occurred after the Supreme Court’s decision in Apprendi, the district court applied several guideline sentencing enhancements that were based purely on judge-found facts. Defendant objected to the enhancements, but did not argue that the guideline enhancements would violate the Sixth Amendment because they were not submitted to the jury. The district court overruled the objections and sentenced defendant to 405 months in prison, a sentence within the then-mandatory guideline range. Defendant filed an appeal, but raised no issue regarding the guideline enhancements. After Booker was decided, defendant then filed a habeas petition claiming that his counsel was ineffective at sentencing for failing to anticipate Booker based upon the Supreme Court’s decision in Apprendi, and accordingly objected to his guideline sentence enhancements on Sixth Amendment grounds. The district court denied the petition and defendant appealed.

    * Holding: The court held, for the first time in this type of case in the Sixth Circuit, that defendant’s counsel was ineffective for failing to raise a Booker-type Sixth Amendment challenge to the judge-found guideline enhancements to defendant’s sentence. The court ruled that “any counsel whose performance satisfied an objective standard of reasonableness would have at least been cognizant of possible extensions of Apprendi to challenge the Federal Sentencing Guidelines and the necessity of preserving those challenges in case the Supreme Court struck down the Guidelines while defendant’s case was pending on direct appeal.” Further, the court held that defendant was prejudiced by counsel’s errors because a codefendant in the case actually did preserve the issue long enough on appeal that he eventually received a Booker remand and a lower sentence. Thus, the court vacated defendant’s sentence and remanded the case for resentencing consistent with Booker.

    • Booker - Acquitted Conduct

U.S. v. Mendez, 05-6777 (8/15/07)

    > Defendant went to trial on a charge of conspiracy to distribute 500 grams or more of meth. The jury found defendant guilty of conspiracy, but held in a special verdict that defendant was responsible for more than 50, but less than 500 grams of meth. At sentencing, applying the preponderance standard, the court held that defendant was responsible under the sentencing guidelines for 2.95 kilograms of meth. Accordingly, the district court increased defendant’s sentence from a range of 63-78 months to a sentence of 151 months. The sentencing occurred pre-Booker and the Sixth Circuit subsequently remanded the case for resentencing in light of Booker. At the resentencing the district court imposed the same sentence. Defendant appealed.

    * Holding: The court held that, after Booker, the court may enhance a defendant’s sentence under the sentencing guidelines based upon acquitted conduct if the court finds by a preponderance of the evidence that the conduct occurred. All that Booker requires is that the district court apply the guidelines as advisory and non-binding. Thus, the sentence was affirmed.

    • Booker/Rita

United States v. Sexton, 05-6412 (1/11/08)

    > Defendants were convicted after trial for drug trafficking. At sentencing, the district court determined the drug amount attributable to each defendant based upon the trial testimony. Defendants argued on appeal that their Sixth Amendment rights had been violated where the district court calculated the drug amounts based upon the preponderance of the evidence standard at sentencing.

    * Holding: First, the court noted that none of the defendants received a sentence higher than the statutory maximum charged in the indictment, and thus neither Apprendi nor Blakely was implicated. Further, even though the district court and not the jury determined the drug amount, Booker and Rita were not violated because the district court applied the guidelines as non-binding. Finally, the court held that retroactive application of Booker’s remedial holding to defendants’ case did not violate defendant’s due process rights, or the Ex Post Facto Clause. Accordingly, the Court found no constitutional violation in the imposition of sentence, and affirmed the district court’s ruling.

    • Booker - Dismissed Conduct

U.S. v. Conway, 06-4083 (1/23/08)

    > Defendant was charged with possession of a sawed-off shotgun, felon in possession of a firearm, and felon in possession of ammunition. Pursuant to a plea agreement, defendant pled guilty to the possession of ammunition charge in return for dismissal of the two charges related to the sawed-off shotgun. At sentencing, the district court imposed a 12 level enhancement for defendant’s possession of the sawed-off shotgun. Defendant argued on appeal that the Sixth Amendment right to jury trial prohibits the district court’s consideration of dismissed conduct at sentencing.

    * Holding: The court held that the central premise of plea agreements is that they waive a defendant’s Sixth Amendment right to a jury trial. Consistent with that premise, the court found that defendant’s plea agreement made it clear that the district court would determine defendant’s sentence and whether he possessed the shotgun or not. The court emphasized that the plea agreement (1) acknowledged Booker and the non-mandatory nature of the guidelines, (2) indicated defendant’s awareness the he could receive up to the statutory maximum, and (3) acknowledged that defendant contested that he possessed the shotgun. These provisions indicated that defendant knew that the plea agreement placed the issue of the shotgun possession squarely within the district court’s discretion at sentencing. Thus, the sentence was affirmed.

    • Booker - Acquitted Conduct

U.S. v. White, 05-6596 (12/24/08)

    > At sentencing, defendant received a 14-year upward adjustment to his sentencing guideline range based upon conduct for which defendant was acquitted after trial. Defendant appealed and the original Sixth Circuit panel affirmed. The court granted en banc review.

    * Holding: The en banc court held that a district court may increase a defendant’s sentence based on acquitted conduct as long as the conduct is proven by a preponderance of the evidence and the sentence is not above the statutory maximum based on the jury verdict. Accordingly, defendant’s sentence was affirmed.

    • Booker/Apprendi

U.S.v. Thompson, 06-6233 (2/11/08)

    > Defendant pled guilty to drug trafficking and carrying a firearm in relation to drug trafficking. Although the indictment alleged only that defendant “carried and used” the firearm (which would yield a five year mandatory sentence) the district court applied a ten year mandatory sentence because it concluded that defendant was responsible for a codefendant’s discharge of a firearm. Defendant appealed and argued that Apprendi, Blakely and Booker precluded the enhancement of defendant’s mandatory minimum.

    * Holding: Relying on the Supreme Court’s decision in Harris, the court held that the various subparagraphs of 18 USC § 924(c) are sentencing enhancements, not elements of the offense that must be pled in the indictment. Accordingly, the court found that enhancement of defendant’s sentence did not violate the Sixth Amendment and that the court had no authority to conclude that Blakely and Booker implicitly overruled Harris. Thus, the court found no Sixth Amendment violation. The court did, however, find a due process violation in the procedure and reversed the sentence on this basis. (See supra, V. Fifth Amendment).

    • Booker/Apprendi

U.S. v. Mabry, 06-2324 (3/3/08)

    > Defendant was an executive officer of the carpenter’s union who was charged with soliciting and obtaining improper discounts from union contractors for services in violation of 29 USC § 186. The statute provides a one-year statutory maximum sentence if the violation does not exceed $1,000. Defendant went to trial, and during the charge conference with the district court, defendant’s counsel stipulated that “if the jury returned a verdict of guilty, it would be presumed that [defendant] received a thing of value of at least one thousand dollars.” Defendant was convicted, but the jury made no specific finding about the dollar amount involved. The district court sentenced defendant to two years in prison. Defendant appealed and argued that the sentence violated Booker and Apprendi because he was sentenced above the statutory maximum of one year and the jury did not make the necessary finding that the loss amount was above $1,000.

    * Holding: The court held that Booker and Apprendi prohibit a district court from sentencing a defendant above a statutory maximum where the relevant facts warranting the higher sentence are neither found by a jury or admitted by the defendant. The court found, however, that defendant’s stipulation at the charge conference that a guilty verdict would mean that the violation of § 186 exceeded $1,000 was sufficient to support the increased sentence. Accordingly, defendant’s sentence was affirmed.

    • Right to Jury Trial/Apprendi

Chontos v. Berghuis, 08-1031 (11/10/09)

    > Defendant was convicted in state court for first degree criminal sexual conduct and, as a result, faced the possibility of life in prison. The state court imposed a sentence of 225 months to 40 years imprisonment. Defendant argued on appeal that the trial court violated his right to jury trial by finding facts at sentencing that increased his mandatory minimum sentence. Defendant lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.

    * Holding: The court held that, pursuant to Apprendi, a defendant’s right to jury trial is only violated if judge-found facts at sentencing increase the statutory maximum penalty. Further, the court confirmed that the sentencing court may rely on acquitted conduct in making its sentencing determinations. Accordingly, the district court’s ruling was affirmed.

    • Right to Jury Trial - Acquitted Conduct

U.S. v. Benson, 08-1131 (1/12/10)

    > Defendant was convicted of participating in a drug conspiracy. The jury found defendant responsible for less than 5 kilos of powder cocaine, at least 50 grams of crack, and no marijuana. At sentencing, the district court determined by a preponderance of the evidence that defendant was actually responsible for 5.85 kilos of powder, 1 kilo of crack, and 80 pounds of marijuana. Defendant appealed his sentence as being in violation of the Sixth Amendment.

    * Holding: Pursuant to the court’s en banc decision in White (See P.V. Issue #23), the court held that a district court may consider acquitted conduct at sentencing so long as it is proven by a preponderance of the evidence. The court found that the extra drug amounts were supported by the evidence, and accordingly, affirmed defendant’s sentence.

    • Booker - Restitution

U.S. v. Sosebee, 03-1923 (8/12/05)

    > Defendant pled guilty to misprision of felony pursuant to a plea bargain. The underlying conduct involved defendant defrauding her supplier of products out of over 2 million dollars. The district court ordered defendant to pay restitution to the supplier in an amount in excess of 2 million. Defendant appealed challenging the restitution order in light of Booker.

    * Holding: Deciding an open question in the Sixth Circuit, the court held that Booker does not apply to restitution orders. The court concluded that restitution orders are governed by statute and do not rely on the sentencing guidelines for their validity. The statute itself (18 U.S.C. § 3663(f)(1)(A)) mandates that the sentencing judge determine the amount of restitution to be paid. Thus, Booker provides no impediment to the district court setting a restitution order, even though the sentencing guidelines are now non-mandatory.

    • Booker - Forfeiture

U.S. v. Hall, 04-5047 (5/31/05)

    > As part of a bank fraud conviction, defendant was ordered to forfeit the proceeds of the illegal activity. Defendant challenged on appeal that, pursuant to Booker and Apprendi, the government could not obtain a forfeiture without proving the necessary elements to a jury beyond a reasonable doubt.

    * Holding: The court held that the Sixth Amendment rights of Booker and Apprendi do not apply to forfeiture proceedings.

    • Right to Jury Trial - Forfeiture

U.S. v. McAuliffe, 06-3016 (6/22/07)

    > Defendant was indicted for arson and mail fraud, and the indictment also contained a forfeiture allegation. At the close of the government’s case at trial, defendant agreed to deal with the issue of forfeiture at sentencing. The district court imposed the forfeiture at the sentencing hearing. Defendant argued on appeal that his Sixth Amendment right to jury trial had been violated in relation to the forfeiture allegation.

    * Holding: The court held the Sixth Amendment does not protect a defendant’s right to jury trial in regard to a forfeiture allegation in an indictment. Accordingly, the forfeiture of defendant’s property was affirmed.

Sixth Amendment:

A. Right to Jury Trial/Booker B. Confrontation Clause C. Speedy Trial D. Right to Counsel/Self Representation E. Indictment - Variance/Deplicity F. Miscellaneous Sixth Amendment

Right to Jury Trial/Booker

Supreme Court Decisions

Sixth Circuit Decisions

A. Right to Jury Trial/Booker
B. Confrontation Clause
C. Speedy Trial
D. Right to Counsel/Self Representation
E. Indictment - Variance/Deplicity
F. Miscellaneous Sixth Amendment