Plea agreement waiver of right to jury trial includes waiver of right to jury determination of sentencing facts

SENTENCING United States v. Leach, No. 04-5117, ___ F.3d ___ (10th Cir. Aug. 3, 2005)(N.D. Oklahoma). Appeal of sentence for theft of mail by postal employee in violation of 18 U.S.C. § 1709. HELD: (1) By explicitly waiving right to jury trial in plea agreement, defendant also waived right to jury determination of facts relative to sentencing. Thus, use of judge-found sentencing facts did not violate holding of United States v. Booker, 125 S.Ct. 738 (2005), that any fact other than prior conviction necessary to support sentence exceeding maximum authorized by plea of guilty or jury verdict must be admitted by defendant or proved to jury beyond reasonable doubt. (2) District court erred in determining defendant’s sentence where it calculated actual loss for sentencing purposes under U.S.S.G. § 2B1.1(b)(1)(F) as dollar amount lost by charitable organization, but counted donors to organization as victims for purpose of sentence enhancement under U.S.S.G. § 2B1.1(b)(2). Read the opinion here.