Friday, February 04, 2005

Federal Court in Utah declares sentencing guidelines unconstitutional. . .

This Court in Utah went further than any Court before it. In US v. Croxford, the District Court threw out the guidelines in their entirety. (Interestingly enough the judge in the case clerked for Scalia).

The Utah Court considered three remedies: (1) convene a jury; (2) use the guidelines apart from the defective upward departure provisions; (3) treat guidelines as entirely unconstitutional and pick a sentence between the min and the max. (see pp. 20-29.) He chose the 3d option. Interestingly, and perhaps ironically, in picking the sentence within the statutorily permissible range, the judge made factual findings (grave harm and absconding) by applying the preponderance standard. (see p. 29.) Once he got rid of the guidelines, the maximum sentence that could be imposed without any fact-finding beyond the facts admitted by the plea was the statutory maximum of 20 years. He was, thus, using the facts regarding grave harm and absconding to determine the sentence within the range permitted by the plea, not to raise the statutory maximum. So no jury trial, no proof beyond a reasonable doubt, and, in fact, no "top" or "lid" to protect the defendant. The court did sentence the defendant to 148 months, slightly below the applicable guideline range of 151-188 months.

This ruling shows creative approaches for re-sentencing of defendants after they obtain relief from appeals Courts. If you or a loved one, was sentenced after June 26, 2000 and the judge found enhancements in that case, you may be entitled to relief.

Chip Venie, Esq.
(619) 235-8300


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