Third Circuit rules, en banc, Blakely and Booker inapplicable to restitution and forfeiture

In a lengthy and thoughtful opinion (with notable concurrences and dissents), the Third Circuit en banc today in US v. Leahy, No. 03-4490 (3d Cir. Feb. 15, 2006) (available for download below), declared Blakely and Booker inapplicable to restitution and forfeiture judgments.  Here is the majority’s summary of its holding:

Because, in our view, restitution under the VWPA and the MVRA is not the type of criminal punishment that evokes Sixth Amendment protection under Booker, we conclude that the amount a defendant must restore to his or her victim need not be admitted by the defendant or proved to a jury beyond a reasonable doubt. As to forfeiture, based upon the Supreme Court’s decision in Libretti v. United States, 516 U.S. 29 (1995), we conclude that the amount a defendant must forfeit also need not be admitted or proved to a jury beyond a reasonable doubt.

Download third_circuit_leahy.pdf

UPDATE:  Leahy can now also be accessed at this link, and a (too) quick review reveals that this is a truly fascinating opinion with lots of facets that merit commentary (such as the fact that Justice Alito was at one point involved in the case but did not participate in the final decision).  I hope to have time for more substantive commentary soon, and in the meantime I encourage readers to provide insights in the comments.