Reasonable doubt standard of proof in federal sentencing may continue to be alive and well post-Booker. This issue is one that may need to be preserved for further appellate review. In the face of business as usual post-Booker in many districts, a district court in Nebraska last month issued a decision on Fifth Amendment grounds holding that "it is not ‘reasonable’ [under Booker] to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt." United States v. Okai, ___ F. Supp.2d ___, 2005 WL 2042301 (D. Neb. 2005); see also United States v.Kelley, 335 F.Supp.2d 031 (D. Neb. 2005).
In Okai, the defendant pled guilty post-Booker without a plea agreement to using counterfeit securities. The indictment to which the defendant pled did not allege relevant conduct and instead charged a single incident of using counterfeit securities. The Presentence Investigation Report considered relevant conduct to increase the amount of loss. At sentencing, the defendant contested the loss for which he was being held accountable which exceeded his admissions during and after the plea entry at sentencing. The defendant objected citing Apprendi, Blakely, and Booker, arguing that these cases required prior notice and that the standard of proof be beyond a reasonable doubt relative to matters not admitted by the defendant.
The Okai district court imposed a sentence at the guideline range based only on the loss to which the defendant agreed. The government though given an opportunity at sentencing failed to introduce any evidence with respect to the controverted facts. The Okai opinion provides a good summary of issues relating to burden of proof that remain alive post-Booker. In reaching its decision, the district court noted that the Booker opinion ruled only on the Sixth Amendment right to jury trial, not the Fifth Amendment’s requirement of proof beyond a reasonable doubt. The court emphasized that certain facts are so important, regardless of whether they are characterized as elements or not, that a heightened certainty of beyond a reasonable doubt should apply. To avoid a constitutional ruling, the court instead conducted a Booker reasonableness analysis, stating, "[W]hatever the constitutional limitation on the advisory sentencing scheme, the court finds that it is not ‘reasonable’ to base any significant increase in a defendant’s sentence on facts that have not been proved beyond a reasonable doubt."
The Okai case is merely a building block for defense attorneys to use in future cases. The reasoning in this case should apply equally if not more so in cases involving acquitted conduct. Whether courts can continue to use acquitted conduct in a post-Booker world is a question that needs to continue to be asked and at some point should be answered. Courts seem to be receptive to the concept that a district judge in conducting a Booker reasonableness analysis should not overrule a jury’s determination of not guilty. For instance, Judge J. Ronnie Greer (ED TN - Greeneville) in the case of United States v. Sheridan McMahan imposed a sentence within the lower calculated guideline range rather than the higher advisory guideline range provided for by the drug quantity calculated based on relevant conduct for which he had been acquitted by a jury. Though Judge Greer couched his decision more in terms of guidelines departure language, the case nonetheless represents one in which Booker has given relief to a defendant. The McMahan case had been pending on appeal when the Booker decision came down, resulting in a remand for resentencing in light of Booker.