Alternate Sentence Cures Sixth Amendment Violation (Again)

US v. Shatley: Shatley pleaded guilty to vote buying and conspiracy to buy votes in connection with a North Carolina sheriff's race. At his pre-Booker sentencing, his offense level was enhanced after the district court concluded that he was a leader in the vote buying scheme and that he obstructed justice. As a result, his Guideline range jumped from 10 to 16 months to 27 to 33 months. The district court imposed a sentence of 33 months. Following the Fourth's recommendation in Hammoud, the district court imposed an alternate sentence of 33 months as well.

Shatley appealed, arguing that this sentence violated the merits portion of Booker and could not be salvaged by the imposition of an alternate sentence. This was a direct application of the court's decision in Revels from two weeks ago (why it merited a published opinion is beyond me). While the Guideline sentence imposed by the district court violated Booker, the 33-month alternate sentence did not, as the district court had "presciently followed" the procedure for post-Booker sentencing set forth in Hughes to arrive at the alternate sentence. As the court concluded:

it is not the length of the sentence that offends the Sixth Amendment, but rather the process used to determine its length. If the jury had found the facts used to justify the 33-month sentence, Shatley surely would have no complaint [surely not! - JDB]. Similarly, if the sentence range was determined pursuant to facts found by the district court but the Sentencing Guidelines were taken only as advisory, Shatley could have no complaint as long as the sentence was entered under 3553(a).

And so it goes.