Sentenced for three uncharged murders

In his opinion for the majority in Blakely, Justice Scalia assailed the notion that the Sixth Amendment could mean that a “jury need only find whatever facts legislature chooses to label elements of the crime, and that those it labels sentencing factors — no matter how much they may increase the punishment — may be found by the judge.”  The problem, explains Justice Scalia, is that this “would mean, for example, that a judge could sentence a man for committing murder even if the jury convicted him only of illegally possessing the firearm used to commit it — or of making an illegal lane change while fleeing the death scene.”

Though this expressed concern about punishing for an uncharged murder might seem like just Scalia rhetoric, I discussed in this post last year the case of US v. Vernier, 2004 WL 2110413 (S.D. Fla. Sept. 17, 2004), in which a defendant in federal court was sentenced for a uncharged murder.   And today I came across this news report of a federal sentencing in which the defendant pled guilty to drug and firearm charges, but received a life sentence after the judge at sentencing found that there was clear and convincing evidence that the defendant was involved in three related killings. 

Of course, had the remedy proposed by Justices Scalia and Stevens carried the day in Booker, the imposition of a longer term based on uncharged conduct would no longer be permitted in the federal system.  But, because Justice Breyer’s remedy prevailed in Booker, increasing a sentence based on such uncharged conduct is still permissible (though, now under advisory guidelines, no longer required).