THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890

Despite Booker and Fanfan Must Guideline Factors Still Be Proved to and Decided by the Jury? 

A. Hinman's motion to strike "Notice of Additional Relevant Facts"
Hinman has filed a motion to strike the section of the Superseding Indictment entitled "Notice of Additional Relevant Facts," and a supporting brief. (Doc. No. 56) The Government has filed a brief in resistance to the motion. (Doc. No. 67)
Hinman's arguments in favor of striking the Notice of Additional Relevant Facts (the "Notice") from the Superseding Indictment are identical to the arguments raised by Dose and Weber in previous motions. (See Doc. Nos. 29 & 43) The undersigned filed a Report and Recommendation ("R & R") on those motions on October 22, 2004 (Doc. No. 50), with a recommendation that the motions be denied. The court now withdraws the prior R & R, and reverses its recommendation.
In light of today's decision by the United States Supreme Court in United States v. Booker and United States v. Fanfan, Nos. 04-104 and 04-105, 2005 WL 50108 (S.Ct. Jan. 12, 2005) ("Booker" ), the court recommends all of the defendants' motions (Doc. Nos. 29, 43, & 56) to strike the Notice of Additional Relevant Facts (the "Notice") from the Superseding Indictment be granted. In Booker, the Court held that those portions of the Sentencing Reform Act of 1984 that make the United States Sentencing Guidelines mandatory, or that depend upon the Guidelines' mandatory nature, are constitutionally infirm and must be severed and excised from Act.
Because the Court has held the Sentencing Guidelines are not mandatory, but are advisory only, none of the facts contained in the Notice must be proven to a jury in order for the court to consider those factors at the time of sentencing. Therefore, the Notice is surplussage and should be stricken from the indictment.


U.S. v. Dose  2005 WL 106493, *3 (N.D.Iowa) (N.D.Iowa,2005)

THE LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890