At the Volokh Conspiracy, Will Baude provides some good background information and context about an issue the Supreme Court may decide in the near future:
Last May I noted a recent cert. petition challenging the use of judge-found facts to increase a federal sentence. (The Supreme Court has already said that it is unconstitutional for statutes to rely on judge-found facts to justify a longer sentence; the new question is whether it is also unconstitutional for common-law rules like appellate reasonableness review to do the same thing. I first blogged about the case here.)
I thought I’d post with a short update about the petition. Two amicus briefs were filed in support of the petition — one from the Cato Institute and Rutherford Institute, and one from Professor Douglas Berman, known to all of the blogosphere for his tireless work at Sentencing Law and Policy. . . .
Looking at the petition and the amicus briefs, I was struck by something: Different people are concerned about different types of judge-found facts. Some are most concerned about facts that are made legally dispositive (emphasized by the cert. petition). Some are most concerned about facts about the offense, as opposed to facts about the offender (noted at the end of the Cato brief). Some are most concerned about facts on which the jury acquitted, as opposed to those that were simply never charged (emphasized by the Berman brief).
So far as I can tell, these defendants’ case lies at the center of all three concerns. So if the Court is indeed interested in deciding whether appellate common-law rules are subject to the same constraints as statutory law—as Justices Scalia and Thomas have argued—the case seems like the right vehicle. . . .