Judge Gertner on reasonable doubt

Since Booker, an argument with strong traction and gut appeal has been that, where disputed facts result in a higher guideline range, the judge should resolve the dispute based on the reasonable doubt standard (see blogs here, here, and here). Judges at seminars and in opinions have communicated the need to apply the high standard both as a matter of confidence for the increased sentences and of respect for the judicial function. In two recent scholarly opinions, Massachutses District Judge Nancy Gertner explains why she applied the reasonable doubt standard to quantity under the federal drug statute and, in an earlier case, to enhancement based on acquitted conduct.

In United States v. Malouf, available here, Judge Gertner addressed sentencing rights where the defendant pleaded guilty to a drug conspiracy indictment, leaving the quantity to be determined by the judge through a jury waiver. Over government objection, the judge decided the case based on the reasonable doubt standard in two separate ways. First, applying the doctrine of statutory avoidance, the court construed Section 841 to create separate offenses, the elements of which must be proved beyond a reasonable doubt. Second, the court found in the alternative that, regardless of the Sixth Amendment, the Fifth Amendment's due process clause required that the "beyond a reasonable doubt" standard be applied. Judge Gertner's analysis -- especially her treatment of Harris -- should be required reading for federal criminal defense lawyers.

Judge Gertner's analysis of recent Supreme Court sentencing decisions in Malouf builds on her earlier decision in United States v. Pimental (available here). In Pimental, defendants in a mail fraud case were acquitted on counts that would have substantially increased the amount of loss for sentencing purposes. But in the pre-Blakely and pre-Booker opinion in Watts, the Supreme Court upheld a sentence increase based on acquitted conduct proved by only a preponderance. Judge Gertner layered a number of bases for her final sentence, including that Watts could not survive Booker, that reasonable doubt was the proper standard under the post-Booker regime, and that the government failed to establish loss by any applicable standard.

Judge Gertner's thoughtful analyses of sentencing in the post-Blakely and post-Booker era defy summarization; if you're looking for useful and interesting summer reading, search ju(gertner) & booker blakely for an excellent reading list. Beats the heck out of Silas Marner and Tess of the Durbevilles.

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