Notable 9th Circuit decision on mandatory minimums

Most of the circuit courts have been fairly quiet on the sentencing front this past week, but the Ninth Circuit on Friday followed up its major ruling on judicial fact-finding and the prior conviction exception with a major ruling on judicial fact-finding and mandatory minimums.  In US v. Dare, No 04-30202 (9th Cir. Sept. 23, 2005) (available here), the Ninth Circuit panel felt compelled, based on the Supreme Court’s Harris decision, to uphold imposition of a mandatory minimum based on judicial fact-finding by a preponderance of the evidence:

Dare argues that the constitutional analysis in Harris was effectively overruled by the plurality in Booker, 125 S. Ct. at 756.  We agree that Harris is difficult to reconcile with the Supreme Court’s recent Sixth Amendment jurisprudence, but Harris has not been overruled.

Notably, Judge Bea dissented, arguing that Harris “is no longer good law in cases where a defendant receives a sentence, based on facts found by a judge other than a prior conviction, that is higher than the maximum sentence the judge could have imposed based solely on facts either admitted by the defendant or found by a jury beyond a reasonable doubt.”  According to Judge Bea, “[w]hile Harris may not be overruled in its entirety, it is limited by Booker, and Dare’s sentence exceeds the Booker limit.”