Grier: Reasonable Doubt At Sentencing Through The Doctrine Of Constitutional Avoidance

The Third Circuit has split on whether the preponderance or reasonable doubt standard applies at sentencing, providing another strong incentive for defense advocates to assert that, before reaching the Fifth Amendment question, courts should apply the Doctrine of Constitutional Avoidance to construe the sentencing statutes and guidelines in the defendant’s favor. In United States v. Grier, the defendant, convicted of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g), challenged the enhancement of his Guideline range by four levels for possessing the gun in connection with an aggravated assault. The trial court found the enhancement by only a preponderance of the evidence.

The majority found that Booker not only resolved the question whether Guidelines enhancements implicated the right to a jury trial, but also decided the standard of proof, which could be by a mere preponderance of the evidence. Judge Sloviter's dissent provides a compelling articulation of the position that the Fifth Amendment’s reasonable doubt requirement inhered in the Supreme Court’s post-Almendarez-Torres jurisprudence and foreclosed enhanced sentencing based on crimes proved by only a preponderance. Interestingly, Judge Sloviter discusses in detail the Supreme Court’s application of the Doctrine of Constitutional Avoidance in Jones, but does not recognize the direct application of the Doctrine to fill the statutory silence on the standard of proof at sentencing.

Since Booker came down, we have been advocating that, given the lack of statutory direction regarding the burden of proof at sentencing, the Doctrine of Constitutional Avoidance requires that the sentencing statutes, rules, and guidelines must be construed to require proof beyond a reasonable doubt of sentencing enhancements, especially those that constitute separate crimes (as set out in the memorandum linked here). The arguments favoring the reasonable doubt standard have found support in several district court opinions (blogged here, here, and here).

Judge Sloviter’s dissent provides further support for the need to avoid the serious constitutional question upon which the majority and the dissent disagreed. The Supreme Court has repeatedly instructed that, rather than engage in this debate, the courts should assume Congress did not intend to legislate close to (or over) the constitutional line. In Shepard, the Court directly applied the Doctrine of Constitutional Avoidance to construe the Armed Career Criminal Act in a manner that avoided potential Sixth Amendment issues. In Martinez, the Court emphasized that the Doctrine of Constitutional Avoidance is a rule of statutory construction that applies to the "lowest common denominator": the situation most likely to implicate the constitutional dangers ("[A] judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it-or of making an illegal lane change while fleeing the death scene. Not even Apprendi's critics would advocate this absurd result.")(Blakely, 543 U.S. at 306).

At the circuit level, the application of the Doctrine of Constitutional Avoidance to the standard of proof at sentencing appears to be a question of first impression. Despite the strength of the Fifth Amendment arguments, serious doubt on the constitutional question is all that is needed to prevail. The Doctrine should provide a bullet proof argument that the Third Circuit did not need to reach the Fifth Amendment question upon which the judges disagreed. We need to continue asserting the Doctrine of Constitutional Avoidance as a manner of reaching the desired result for our client without requiring an ultimate ruling on the scope of the Fifth Amendment’s protections at sentencing.

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