« Sixth Circuit Stops Trying to Explain Its Booker Cases | Main | About the Authors »

February 11, 2005



In theory, I think you raise a good point about judges extrapolating, but if you go to the Sixth Circuit case cited, you'll see the court's conclusion as to "risk to human life or environment" was not based solely on the defendant's admission that protection gear was required. A quick summary - the sentencing guidelines tell a court considering risk to consider, among other things, (1) type of drug (2) quantity produced (3) location of production and (4) the manner in which they were disposed. Here the defendant admitted he cooked (1) cyrstal meth (2) a lot of it (3) in several residential neighborhoods and (4) did so in a way that required protective gear to dispose of it. Yes, teh court probably could have been more explicit, but I think they're on sound footing. Sorry for the long post. Cheers.

Sam Heldman

Thanks for the comments. I admit that I'm shooting from the hip since I haven't ever really researched this particular aspect of Apprendi/Blakeley, but it still seems to me that even with all those things admitted, the finding of risk to life or environment is still a separate fact that a finder might or might not find based on those sub-facts. Maybe I'm wrong -- been wrong before! Anyway, haggling about Blakeley issues of this sort is so 2004. The odd thing, as Prof. Berman pointed out, is that the panel here didn't even do a Booker/Fanfan analysis.


I see what your saying. But is it a fact, or is it an conclusion? Now I'm shooting from the hip, but I think of application of law to fact scenarios. If the court finds facts x, y, and z, it can lead to a legal conclusion that he consented. Whether he consented isn't a factual finding. I don't know, it's Friday and time to go. Just discovered this blog recently, keep up the good work.

The comments to this entry are closed.