First Circuit rejects application of Sixth Amendment to mandatory restitution

Formally joining other circuits in limiting the reach of Blakely and Booker, the First Circuit in US v. Milkiewicz, No. 06-1192 (1st Cir. Dec. 6, 2006) (available here) Wednesday held that “like all of the other circuits to consider this question, we conclude that Booker and its antecedents do not bar judges from finding the facts necessary to impose a restitution order.”  (As Milkiewicz highlights, though there is consensus on this conclusion, there this is a circuit split on the rationale.)

Notably, the panel in Milkiewicz concedes that a “literal application of the Supreme Court’s language might suggest” that the defendant has broader constitutional rights in this setting.  But apparently lower courts these days all feel it is appropriate to reject a “literal application of the Supreme Court’s language” when that might provide defendants with greater procedural protections in the criminal justice system.