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Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).
Argument: In 2007, the Supreme Court in Rita v. United States declined to consider the hypothetical issue of whether judicial factfinding may justify an otherwise unreasonable sentence. This case presents the best possible concrete version of Rita's hypothetical. The Court should grant review to determine whether it was permissible for the district court to impose a 92-year sentence for a non-violent fraud with a Guidelines range of under five years, based solely on a judicial finding that petitioner committed a "heinous" murder. And for the reasons further detailed in the petition, the Court should also conclude that this sentence violated petitioner's right to a jury trial under the Fifth and Sixth Amendments. The Court should grant the petition for a writ of certiorari in this case.
Argument: The Court should overrule Loving v. United States, which is no longer good law in light of Ring v. Arizona. Rules for Courts-Martial 1004 violates constitutional separation-of-powers principles. Only Congress may define the elements of a criminal offense. The foregoing separation-of-powers principles apply equally in the military justice system.
