US v. Malouf, No. 05-2245. In the way of Booker and Blakely, some silly District Court judges got the idea that there was a "new concern for procedural fairness in the finding of facts." These judges were obviously pinkos, because this would mean that rich people would be treated similarly to their poor cousins. (By cousins, I don't mean blood relatives, but "cousins" in the way that Martians are our cousins.)
Anyway, after pleading guilty, but researching the right to litigate the amount of drugs attributed to him, the judge found the the government had proved its case by a "preponderance" but not beyond a reasonable doubt. The government did not like this, because this would mean that Congressional intent to put lots of people in jail might not be satisfied.
So, the First holds that the issue has already been decided:
Approximately ten months after the district court decided Malouf, we decided the case of US v. Lizardo, No. 04-1714 (our coverage) in which we held that "Booker left intact the Supreme Court's precedent in Harris, which allowed the use of judicially found facts to increase a mandatory minimum sentence."
And,then the First circuit skewers the First by saying that its due process analysis and there is no need to really be THAT confident in whatever facts send people to jail for a long time, so McMillan v. Pennsylvania, 477 U.S. 79 (1986) is still, in the First Circuit, at least, good law.
To prove how silly the District Court was, the First quotes its opinion:
[i]f a substantial sentence hinges on a finding of a specific quantity" because in such cases courts "should have a high degree of confidence in this finding."
Ha ha. Good thing the First puts that to rest, by quoting McMillan
The [Supreme] Court noted that "sentencing courts have always operated without constitutionally imposed burdens of proof" and that the visible possession requirement, despite triggering a mandatory minimum penalty, did not implicate the Due Process Clause because it "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty."
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