A New Twist on Standard of Proof at Sentencing

United States v. Christopher K.P. Reuter, No. 05-4503 (September 19, 2006): Mr. Reuter’s guidelines range, without adjustments, initially topped out at 105 months. However, the district court found that he had committed a murder during the course of the conspiracy. With that finding (and several unspecified others), his range became 360 to 480 months, and he received a sentence of 360 months.

His attorney filed an Anders brief. The Seventh Circuit acknowledged the claim that the calculations should have been made under a clear and convincing standard, since the sentence after the enhancements was the proverbial tail wagging the dog. However, since Mr. Reuter had confessed to the murder and since his confession had been corroborated, the Court concluded that this higher standard would have made no difference.

In dictum, the Court observed that in the past it, like other courts, had allowed for the possibility that the clear and convincing standard might apply, but had never applied it. That debate, the Court continued, has now been rendered academic by Booker, but with this consequence.

After a judge calculates the guidelines and creates a tail powerful enough to wag the dog, Booker now allows the judge to make a downward variance. "A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances."