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The remaining circuit split over due process burden-of-proof requirements

By Douglas A. Berman

The Eighth Circuit decision today in US v. Garth, No. 07-2330 (8th Cir. Sept. 3, 2008) (available here), highlights in this footnote that there is still a split within the circuit over whether, even after Booker made the guidelines advisory, due process requires certain sentencing facts to be proven by a standard of proof higher than merely a preponderance of the evidence: The Third and Seventh Circuits have held that by rendering the Guidelines advisory, the [Supreme] Court has remedied any due process violation that occurs when sentencing facts found by a preponderance of the evidence are used to calculate an advisory Guidelines? range that causes an extreme increase in the length of the defendant?s sentence.  United States v. Fisher, 502 F...continue to full post

Full post as published by Sentencing Law and Policy on September 03, 2008 (boomark / email).