In the Courts

Booker Does not Require a Jury to Find Facts Supporting A Restitution Order

In United States v. Milkiewicz, ___ F.3d ___, 2006 WL 3501277 (1st Cir. Dec. 6, 2006), the First Circuit held that, even in the wake of United States v. Booker, 543 U.S. 220 (2005), a sentencing court may rely on its own fact-finding to set the restitution amount in a restitution order.

Defendant was convicted of defrauding a federal court in a scheme in which he sold office supplies to the court at inflated prices and billed the court for more supplies than were actually delivered. On appeal, the defendant argued that the district court's restitution order, which was based on the court's own factual findings, violated the defendant's Sixth Amendment rights under Booker because such facts must be found by the jury. The First Circuit disagreed, holding that Booker does not bar judges from finding the facts necessary to impose restitution.

Sixth Circuit Holds That Rule 32(h) Remains in Force Post-Booker

In United States v. Cousins, ___ F.3d ___, 2006 WL 3435608 (6th Cir. Nov. 30, 2006), the Sixth Circuit held that Federal Rule of Criminal Procedure 32(h), which requires a sentencing court to give advance notice before departing from the applicable sentencing range, remains in force following the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), which rendered the Sentencing Guidelines advisory.

The defendant appealed his 48-month sentence for threatening the President of the United States, arguing that the sentencing court committed plain error by failing to give advance notice, as required by Rule 32(h), that it intended to impose an above guidelines sentence based on a ground not identified in the Pre-Sentencing Report. The court noted that four circuits, the Third, Seventh, Eighth, and Eleventh, have held that Rule 32(h) has no application in the wake of Booker. But the circuit court explained that although parties know that a sentencing court may award a sentence at variance with the Guidelines, they cannot know on which of the many sentencing factors the court may decide to base that ruling. Therefore, the Sixth Circuit joined the Fourth, Ninth, and Tenth Circuits in holding that Rule 32(h) remains in force. The court also found that the sentence was unreasonable because the sentencing judge failed to adequately explain the reason for the variance. The sentence was vacated and the case remanded for resentencing.

Ex Post Facto Government Ratification Does Not Cure Public-Sector Corruption

In United States v. De La Cruz, ____ F.3d ____, 2006 WL 3423143 (7th Cir. Nov. 29, 2006), the Seventh Circuit held that when there is sufficient evidence of an intent to misapply funds, ex post facto approval of the expenditures by the controlling government body is not a defense to a violation of 18 U.S.C. ' 666.

Defendants, public officials in the city of East Chicago, IN, were convicted after a jury trial of misapplying public funds. The case involved a project to pour concrete for public sidewalks. The defendants are alleged to have been involved in a scheme to direct the concrete work to specific contractors without proper approval. It is also alleged that they directed that concrete work be performed on private property using public funds. On appeal, the pair argued that they could not have misapplied funds because the expenditures in question were later properly approved by the city government, and that ratification is a complete defense to a federal prosecution for misapplication of funds under 18 U.S.C. ' 666(a)(1)(A). The Seventh Circuit disagreed, explaining that the key issue is whether the defendants' intended to misapply the funds. Later ratification can be important evidence that the misapplication was not intentional, but it does not serve as a defense when, as here, there is sufficient evidence of criminal intent.

Booker Does not Require a Jury to Find Facts Supporting A Restitution Order

In United States v. Milkiewicz , ___ F.3d ___, 2006 WL 3501277 (1st Cir. Dec. 6, 2006), the First Circuit held that, even in the wake of United States v. Booker , 543 U.S. 220 (2005), a sentencing court may rely on its own fact-finding to set the restitution amount in a restitution order.

Defendant was convicted of defrauding a federal court in a scheme in which he sold office supplies to the court at inflated prices and billed the court for more supplies than were actually delivered. On appeal, the defendant argued that the district court's restitution order, which was based on the court's own factual findings, violated the defendant's Sixth Amendment rights under Booker because such facts must be found by the jury. The First Circuit disagreed, holding that Booker does not bar judges from finding the facts necessary to impose restitution.

Sixth Circuit Holds That Rule 32(h) Remains in Force Post-Booker

In United States v. Cousins , ___ F.3d ___, 2006 WL 3435608 (6th Cir. Nov. 30, 2006), the Sixth Circuit held that Federal Rule of Criminal Procedure 32(h), which requires a sentencing court to give advance notice before departing from the applicable sentencing range, remains in force following the Supreme Court's decision in United States v. Booker , 543 U.S. 220 (2005), which rendered the Sentencing Guidelines advisory.

The defendant appealed his 48-month sentence for threatening the President of the United States, arguing that the sentencing court committed plain error by failing to give advance notice, as required by Rule 32(h), that it intended to impose an above guidelines sentence based on a ground not identified in the Pre-Sentencing Report. The court noted that four circuits, the Third, Seventh, Eighth, and Eleventh, have held that Rule 32(h) has no application in the wake of Booker. But the circuit court explained that although parties know that a sentencing court may award a sentence at variance with the Guidelines, they cannot know on which of the many sentencing factors the court may decide to base that ruling. Therefore, the Sixth Circuit joined the Fourth, Ninth, and Tenth Circuits in holding that Rule 32(h) remains in force. The court also found that the sentence was unreasonable because the sentencing judge failed to adequately explain the reason for the variance. The sentence was vacated and the case remanded for resentencing.