Eighth Circuit gives cursory attention to burdens of proof (and also affirms another above-guideline sentence)

June 19, 2006

As highlighted by this list, the Eighth Circuit’s affirmance today of yet another above-guideline sentence in US v. Lyons, No. 05-2416 (8th Cir. June 19, 2006) (available here), is hardly news. Somewhat more newsworthy is the Eighth Circuit cursory discussion of burdens of proof in US v. Johnson, No. 06-1056 (8th Cir. June 19, 2006) (available here).

As noted in the posts linked below, a few other circuits have recently given quite thoughtful and extensive consideration to the argument that some guideline enhancements after Booker call for finding under a heightened burden of proof. (The Third Circuit in Grier devoted 68 pages to this issue in a split ruling, and the Ninth Circuit needed 19 pages for its unanimous Staten ruling.) But as demonstrated by the paragraph below, a single sentence apparently suffices to address this important issue in the Eighth Circuit:

Johnson asserts that the sentencing enhancements violated his due process rights and that the proper standard of proof should be beyond a reasonable doubt. Alternatively, he requests that we at least adopt a clear and convincing standard in cases in which enhancements have a “disproportionate impact on the sentence.” It is clearly established in this circuit that sentencing enhancements must be proven by a preponderance of the evidence, however. United States v. Garcia-Gonon, 433 F.3d 587, 593 (8th Cir. 2006) (citing United States v. Pirani, 406 F.3d 543, 551 n. 4 (8th Cir. 2005) (en banc)).

Critically, neither Garcia-Gonon nor Pirani addressed Johnson’s alternative argument to apply clear-and-convincing standard to some enhancements (which is the approach recently reaffirmed in the Ninth Circuit in Staten). Apparently, the application of a civil burden of proof for even contested issues having a disproportionate impact on the sentence does not give the Eighth Circuit panel even a moment’s pause.