05-2224 U.S. v. Robinson

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“Here, the district judge was concerned that because the firing of the gun was not charged, admitted, or found by a jury, he would run afoul of the Sixth Amendment by finding facts. True, Booker holds that judges may not find facts that increase the maximum punishment and that a mandatory sentencing guidelines scheme violates that rule. But Booker resolved the problem by making the guidelines advisory; judicial fact-finding in sentencing is acceptable because the guidelines are now nonbinding. Dean, 414 F.3d at 730; McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005).

“In an overabundance of Sixth Amendment caution, the district judge declined to determine whether Robinson fired his gun. By sidestepping this determination, the district judge erred as a matter of law by failing to resolve a disputed sentencing fact essential to a properly calculated guidelines range.”

Vacated and Remanded.

Appeal from the United States District Court for the Northern District of Indiana, Sharp, J., Sykes, J.