I wanted to offer a few thoughts in response to Doug Berman's post (mentioned by Jonathan below) about Judge Posner's sentencing opinion in United States v. Boyd.

  One way to read Doug's post is that he finds it objectionable — or more specifically, contrary to "numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government" — that a federal district court determined beyond a reasonable doubt whether the defendant violated state law. He writes:

  Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness. Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness.
  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.

  On this issue, my sense is that Doug's concerns are misplaced. Federal law occasionally requires federal district courts to try defendants for violations of state criminal law. Consider prosecutions brought under the Assimilated Crimes Act, 18 U.S.C. 13. The Assimilated Crimes Act was first enacted in 1825, and it federalizes state criminal laws on federal property in some circumstances. Prosecutions brought under the ACA require federal courts to hold trials on whether defendants violated state criminal laws — even state criminal laws enacted after the passage of the ACA. The Supreme Court upheld the ACA as constitutional in United States v. Sharpnack, 355 U.S. 286 (1958), and under Sharpnack Congress seems to have pretty wide authority to adopt state law as a controlling federal standard.

  So to the extent Doug suggests that having federal judges try defendants for violations of state law (with federal consequences) is unconstitutional, I don't think that's right under Sharpnack.

  Doug also notes that that Indiana prosecutors did not indict or try Boyd for this state offense. This is true, but I'm not sure why it is relevant. Blakely requires proof beyond a reasonable doubt of each element of the statutory offense, and the statutory offense does not make a state conviction an element. Perhaps I'm missing something, but it seems pretty sensible to me for a trial judge to try to square Congress's language with the Supreme Court's Blakely decision by determining beyond a reasonable doubt whether in fact Boyd committed the state offense. So if the district court held a mini-trial on the sentencing element, then that seems unobjectionable to me (although I'm not sure off the top of my head if that would have to be a bench trial or a jury trial — did the plea waive the jury trial right?).

  On the other hand, I agree with Doug's criticisms to the extent he is criticizing Judge Posner for being unclear. At least after a quick read, I find it hard to figure out what Posner is doing. Is he conducting a sufficiency review to determine if there was sufficient evidence to support the trial judge's finding of proof beyond a reasonable doubt? That would make sense, and there is language in the opinion to support that. On the other hand, other parts of Posner's opinion suggests that he is conducting some sort of free-floating de novo review. For example, presumably you don't need a satellite photo to conduct a sufficiency review (although this may have been just an extraneous comment as to what kind of evidence would have been helpful at trial). And what does it mean to be "reasonably confident" about the result? What standard is that? I agree with Doug that this part of the opinion is rather weird.

  UPDATE: Doug Berman clarifies his concerns and raises some good points in a new post. Definitely worth checking out.