Booker: reasonable doubt update

An earlier posting, available here, outlined an argument that the reasonable doubt standard survives Booker. A letter brief elaborating this argument, available here, is circulating among federal defenders. And now that brief already needs to be supplemented with the subject of the next posting, Judge Bataillon's opinion yesterday in Huerta-Rodriguez in which, applying judicial discretion by express analogy to the constitutional avoidance doctrine, the court stated: "Whatever the constitutional limitations on the advisory sentencing scheme, the court finds that it can never be 'reasonable' to base any significant increase in a defendant's sentence on facts that have not been proved beyond a reasonable doubt."

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.