Crawford and Sentencing

I've been asked about the role, if any, that Crawford plays in sentencing proceedings, in light of Blakely and Booker. I don't know much about sentencing, so I asked Jeff Fisher, who argued and won both Crawford and Blakely and follows both areas closely, to comment. He has graciously complied, and I am posting his comments below, with a follow-up by me.
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I've been asked several times recently whether Crawford applies to
evidence the prosecution offers to prove sentencing facts in the
post-Blakely, post-Booker world. I think the answer depends on what
kind of sentencing fact (or sentencing system) we're talking about:

1. If the fact is covered by Blakely -- that is, the fact is necessary
in a given state system to permit a judge to impose a sentence above an
otherwise binding threshold -- then Crawford should apply. I have not
seen any decisions on this yet, but the thrust of Blakely is that such
facts are effectively elements of an aggravated offense. That being so,
the right to confrontation, as well as other constitutional and
evidentiary rights, apply.

2. If the fact is covered by Booker -- that is, the fact is necessary
to a sentencing guideline calculation, but that guideline calculation
does not bind the judge in imposing the sentence -- then the question is
harder. But, in my view, if the sentencing judge thinks that the fact
at issue, if found, will cause him to impose a higher sentence under a
combination of the guidelines and the factors in 18 USC § 3553(a), then
there is a strong argument that Crawford ought to apply at least as a
discretionary matter. This is essentially the conclusion a district
court recently reached in United States v. Gray, 2005 WL 613645
(S.D.W.Va. March 17, 2005). Indeed, if the judge thinks that a fact at
issue will require him, as a matter of statutory reasonableness on
appellate review, to impose a higher sentence, then Crawford may well
apply as a matter of right.

3. Finally, if the fact covered by neither Blakely nor Booker -- that
is, if the fact is simply something the judge is finding under an
indeterminate sentencing system -- then Crawford does not apply because
the Confrontation Clause does not apply. But the due process
reliability requirements still apply. And I think Crawford's
description of the importance of cross-examination in ensuring the
reliability of testimonial evidence ought to figure into that
reliability analysis. But, again, I have not yet seen any cases one way
or another on this.
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An additional comment: Suppose a witness testifies for the prosecution at a sentencing hearing in a jurisdiction fitting into Jeff's categories 2 0r 3. After direct testimony, the judge excuses the witness, saying, "Thank you. That strikes me as very reliable. You are excused. There is no need for cross-examination." It seems to me that this would be a constitutional violation -- if not of the Confrontation Clause, because the Clause is deemed categorically inapplicable in this setting, then of a generalized due process right. Then why shouldn't the result be the same if instead of testimony given from the stand the statement is a testimonial one made beforehand? One difference might be that if the testimonial statement was made earlier the witness might be unavailable by the time of the sentencing hearing. But I am not sure that should make a difference. Suppose that the witness testifies on direct at the sentencing hearing, as above, and just after direct is concluded she suddenly dies, through nobody's fault. If this occurred at trial, the direct testimony could not be used in the prosecution's favor. I am inclined to think that the result should be the same, even if the Confrontation Clause is deemed inapplicable, when the witness dies before cross at the sentencing hearing, and if that is so the result should be the same if the testimonial statement was made before rather than at the hearing.

RF