Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes

The Seventh Circuit today in US v. Welch, No. 03-3638 (7th Cir. Nov. 21, 2005) (accessible here) demonstrates yet again that the principles of Blakely have been undermined by the Booker remedy.  In Welch, the district court nearly doubled the defendant’s sentence based on its “finding, by a preponderance of the evidence, that the defendant had committed four other bank robberies” that apparently were never formally charged.  The Seventh Circuit in Welch walks through all the post-Booker rules to conclude that there is no problem with a judge’s decision to greatly enhance a defendant’s sentence based on that judge’s conclusion, by the preponderance of the evidence, that the defendant committed other offenses that apparently were never the subject of indictment or subject to true adversarial testing.

Interestingly, the Seventh Circuit in Welch quotes from the district court’s “conviction” of the defendant on four crimes that it seems were never indicted or subject to adversarial testing:

After reviewing all of the evidence, this Court finds that the Government has put forth sufficient “reliable” evidence to show by a preponderance of the evidence that Welch committed the three bank robberies at Tech Federal on February 7, March 25[,] and May 20, 1997, and the robbery of the Bank of Homewood on July 8, 1997.  While no one piece of evidence clearly implicates Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance to this Court is the black jacket found at his residence, the yellow hard hat, the statement to Austin, and the bank surveillance photos.  Moreover, even discrediting the identification by Judith Welch and the teller, this Court finds that their identification of Welch is sound.  After closely observing Welch at the trial and the sentencing hearing and closely comparing him to the bank surveillance tapes, this Court firmly believes that Welch is the robber in those photographs.

I have to think that the Founders who had a role in ensuring that trial by jury was guaranteed in both Section 2 of Article III and in the Sixth Amendment are right now rolling over in their graves.  (Of course, these Founders likely rolled over a couple times after the Supreme Court in Watts held that acquitted conduct could be the basis for a mandatory sentence enhancement.  But if the spirits of these Founders had some new hope after Apprendi and Blakely came along, Booker and Welch surely having them spinning in their graves again.)