Friday, August 03, 2007

Tenth Circuit interprets Booker and Blakely and sentences fraud defendant by facts found by preponderance

In United States v. Dazey, the Tenth Circuit upheld a district court's sentence that was based upon facts found by preponderance b y a district judge. The Dazey court re-affirmed pre Booker case law and determined:

"For the reasons stated in Dalton and Magallanez, the district court applied the correct standard in evaluating the factual evidence related to Dazey's sentencing enhancements. As this court has explained, "Constitutional Booker error occurs when the district court re[lies] on judge-found facts . . . to enhance a defendant's sentence mandatorily." Dalton, 409 F.3d at 1252 (quotation omitted). It is only the mandatory application of enhancements that create constitutional problems, not the manner in which the facts underlying the enhancements are found."

This cannot be what the Sixth Amendment and Booker (which of course is based on Apprendi and Blakely) meant. If the Dazey court's interpretation of Booker were sound, a federal judge could still enhance a defendant's sentence outside of the presumptive USSG range and outside of the statutory maximum for the offense and so long as the district judge stated on the record that he or she was enhancing the defendant's sentence because he or she wanted to, not because he or she was commanded by the law to impose a certain sentence.

Click here for entire opinion:

Chip Venie is a private criminal defense attorney in Albuquerque, New Mexico. He is admitted to practice before state and federal courts in New Mexico, California, Washington, D.C., and Michigan. Mr. Venie graduated from The University of Virginia School of Law and clerked as a staff Attorney to the United States Court of Appeals for the Fourth Circuit in Richmond, Virginia. Mr. Venie has litigated over 700 trial level felony matters and over 150 appeals. Mr. Venie can be reached at (505) 766-9000 or 619) 235-8300, or

Mr. Venie's website can be found at


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