High level of deference to sentencing guidelines does not violate Booker as de facto mandatory application of guidelines

TRIAL/SENTENCING United States v. Crockett, No. 04-4204, ___ F.3d ___ (10th Cir. Jan. 31, 2006)(Utah). Appeal of convictions and sentence for conspiring to defraud Internal Revenue Service, in violation of 18 U.S.C. § 371, and aiding and assisting in preparation of false and fraudulent tax returns, in violation of 26 U.S.C. § 7206(2). HELD: (1) District court did not err by: (a) limiting defendant’s cross-examination of witnesses; (b) not limiting prosecutor during cross-examination of defendant concerning certain impeachment evidence; or (c) rejecting certain jury instructions proposed by defendant. Additionally, defendant failed to show: (a) that certain testimony given by witness to grand jury that was not consistent with trial testimony constituted false testimony; or (b) that prosecutor knowingly elicited false testimony from another witness. (2) Giving federal sentencing guidelines high level of deference on remand for resentencing does not violate defendant’s Sixth Amendment rights as set out in United States v. Booker, 125 S. Ct. 738 (2005) by de facto making guidelines mandatory. Booker instructs that trial courts, “while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing.” (3) Booker did not hold or imply that every sentencing fact must be found beyond reasonable doubt. Booker did not address standard of proof except to say that fact (other than fact of prior conviction) necessary to support sentence exceeding maximum authorized by plea of guilty or guilty verdict must be admitted by defendant or proved beyond reasonable doubt. Thus, other than for facts necessary to support sentence exceeding maximum authorized by guilty plea or guilty verdict, correct standard for findings under guidelines is preponderance of evidence. Under post-Booker advisory guidelines regime, conviction, by itself, authorizes sentence up to statutory maximum. Thus, facts guiding district court’s exercise of discretion need not be found beyond reasonable doubt. Read the opinion here.