Another 8th Circuit Booker ruling

Continuing to set the pace for circuits in rendering Booker decisions, the Eighth Circuit today issued US v. Fox, No. 03-3554 (8th Cir. Jan. 31, 2005) (available here).  Legally, there is nothing crafty about the Fox ruling; the defendant had preserved a Blakely claim and the Eighth Circuit does nothing more than remand for resentencing in accordance with Booker.  However, factually, the case provides a useful primer on why Blakely and Booker are so consequential.  Here’s the court’s account of how judicial fact-finding initially played a role in Fox’s sentencing:

In this case, the jury made a specific finding that Fox was responsible for at least 50 grams of methamphetamine, but less than 500 grams of methamphetamine.  The presentence investigation report recommended that Fox be found responsible for 1.814 kilograms of methamphetamine.  Fox filed an objection to this recommendation and argued the objection during the sentencing hearing before the district court.  However, the district court overruled Fox’s objection on this issue and found, based on a preponderance of evidence, that 1.814 kilograms of methamphetamine were attributable to Fox.  This resulted in a significant enhancement to the applicable guideline range utilized by the trial court in assessing its sentence.

In addition to providing a window on the types of cases impacted by Blakely and Booker, this case reinforces the my views, developed in this post, about requiring proof beyond a reasonable doubt in any “legislative fix” of Booker.