Over at the Sentencing Law & Policy blog — an absolute must-read blog for those interested in sentencing issues — Doug Berman takes Judge Richard Posner to task for pontificating on what would be sufficient to establish that a criminal defendant engaged in an uncharged felony under state law so that his sentence could be enhanced under federal law. In United States v. Boyd, Judge Posner wrote the panel opinion upholding the trial court's decision to enhance Artemus Boyd's sentence for being a felon in possession of a gun based on the trial court's conclusion that Boyd "had used the gun to commit another felony," namely criminal recklessness, a felony under Indiana state law. The twist, however, is that Boyd was never charged (let alone convicted) of committing the state felony, so Judge Posner devotes the lion's share of his opinion to explaining why Boyd's comment was likely to have been sufficiently reckless to justify the sentencing enhancement.

we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

Berman finds this quite unseemly, and contrary to the principles underlying the Supreme Court's string of opinions on sentencing guidelines (i.e. Apprendi, Blakely, etc.).

On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense. Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988"). . . .

Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute."

Berman's challenge to his readers is straightforward: Explain how Judge Posner's opinion is consistent with the principles of Blakely and the constitutional right to trial by jury.