Friday, June 24, 2005

No Right of Confrontation at Sentencing

United States v. David Martinez, Docket No. 04-2075-cr (Sotomayor, Raggi, Hall) (Op. by Sotomayor): In a case of first impression in the Circuit, the Court rules that the Sixth Amendment right of confrontation does not apply to sentencing hearings, even in light of Crawford v. Washington, 541 U.S. 36 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). The Court thus rejected the defendant's claim that his confrontation rights were violated when the district court relied on hearsay testimony introduced at a Fatico hearing to substantially increase his Guidelines sentencing range.

Unfortunately, Martinez is a short opinion that fails to address or account for the revolution wrought by the Apprendi line of cases. The decision makes no effort to, as Justice Stevens aptly put it in his Booker majority opinion, "preserve Sixth Amendment substance" in light of the realities of modern sentencing practice. 125 S. Ct. at 752.

One aspect of the Court's reasoning is particularly suspect. After concluding that neither "Crawford nor Booker so undermined the rationale of [earlier] Second Circuit precedent [approving of] the consideration of hearsay testimony at sentencing" as to require revisitng or overruling those prior cases, the Court offers another reason for rejecting the defendant's effort to import the procedural protection embodied by the right of confrontation into the sentencing context. As the Court explains:

"We find it significant, moreover, that judges imposing sentence in accordance with Booker may exercise greater discretion than they could have exercised under the pre-Booker regime. . . . . [And] if consideration of hearsay testimony during a sentence proceeding was not prohibited under a mandatory Guidelines regime, there is no logical basis for concluding that it is prohibited under the system of advisory Guidelines established by Booker."

Op. at 8. This is a bad argument that rests on a highly questionable premise -- that "consideration of hearsay testimony during [sentencing] was not prohibited under a mandatory Guidelines regime." In light of Justice Stevens's "remedial majority" opinion in Booker, which of course ruled that the mandatory Guidelines regime violated defendants' Sixth Amendment jury trial right, there is good reason to believe that the same regime, by allowing courts to rely on hearsay to increase the applicable Guidelines range (i.e., the "statutory maximum" within the meaning of Blakely), also violated defendants' confrontation right. That is, since a fact that increases a sentencing range under mandatory Guidelines must be found by a jury under the reasonable doubt standard, and thus treated like an element of the offense, it seems logical to apply other procedural protections ordinarily attendant to the fact-finder's determination of whether the existence of the element has been proven -- e.g., the right of confrontation. Whether there should be a confrontation right under the advisory Guidelines regime created by Breyer's remedial opinion in Booker, in short, cannot be determined by "simple logic."


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