Boyd v. Blakely?

Over at the Sentencing Law & Policy blog — an absolute must-read blog for those interested in sentencing issues — Doug Berman takes Judge Richard Posner to task for pontificating on what would be sufficient to establish that a criminal defendant engaged in an uncharged felony under state law so that his sentence could be enhanced under federal law. In United States v. Boyd, Judge Posner wrote the panel opinion upholding the trial court's decision to enhance Artemus Boyd's sentence for being a felon in possession of a gun based on the trial court's conclusion that Boyd "had used the gun to commit another felony," namely criminal recklessness, a felony under Indiana state law. The twist, however, is that Boyd was never charged (let alone convicted) of committing the state felony, so Judge Posner devotes the lion's share of his opinion to explaining why Boyd's comment was likely to have been sufficiently reckless to justify the sentencing enhancement.

we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

Berman finds this quite unseemly, and contrary to the principles underlying the Supreme Court's string of opinions on sentencing guidelines (i.e. Apprendi, Blakely, etc.).

On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense. Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988"). . . .

Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute."

Berman's challenge to his readers is straightforward: Explain how Judge Posner's opinion is consistent with the principles of Blakely and the constitutional right to trial by jury.

Related Posts (on one page):

  1. Thoughts on the Boyd Case:
  2. Boyd v. Blakely?
The answer's pretty obvious, no? The final sentence was below the statutory maximum allowed for the offense of which Boyd was convicted -- being a felon in possession of a gun. No Blakely problem.

Also, Prof. Berman's challenge is less than straightforward. It's an unfocused rant that has provoked similarly unfocused, ranting comments.
1.31.2007 11:00am
redheadlaw7 (mail):
Ummm...I'm no expert...just a state appellate staff attorney...but where does it say that an appellate court can google info on appeal that the sentencing court did not have available on the trial level? I thought they were limited to the facts in the record...I know us lowly state courts are. Regardless of whether there's a Blakely issue...this is just plain bizarre.
1.31.2007 11:22am
MS (mail):

The man said Blakely. Don't go reading ahead to the Booker remedial opinion.
1.31.2007 12:16pm

"In this case, petitioner was sentenced to more than three years above the 53-month statutory maximum of the standard range because he had acted with 'deliberate cruelty.' The facts supporting that finding were neither admitted by petitioner nor found by a jury. The State nevertheless contends that there was no Apprendi violation because the relevant 'statutory maximum' is not 53 months, but the 10-year maximum for class B felonies in § 9A.20.021(1)(b). It observes that no exceptional sentence may exceed that limit. See § 9.94A.420. Our precedents make clear, however, that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, § 87, at 55, and the judge exceeds his proper authority"

Blakely v. Washington, 542 U.S. 296, 303-04 (2004) (some citations omitted)
1.31.2007 2:10pm
poster child (mail):
This wouldn't be Doug "The Subway Fugitive", "Not a Slave to Fashion", "Bongo Boy" Berman, would it?
1.31.2007 4:14pm