Second Circuit Notes Split Re Whether Duplicative Aggravating Factors Are Unconstitutional

Per U.S. v. Fell, --- F.3d ----, 2008 WL 2552863 (2d Cir. June 27, 2008):

Three years after the Tenth Circuit's decision in McCullah, the issue of duplicative aggravating factors was considered by the Supreme Court in Jones v. United States, 527 U.S. 373 (1999), a case that reviewed a Fifth Circuit decision applying McCullah. The Fifth Circuit had found that two of the aggravating factors charged by the government were unconstitutionally duplicative. The Supreme Court declined to decide whether the Tenth Circuit's double-counting theory was either valid or appropriately applied by the Fifth Circuit. Id. at 398-99. . . .^FN26

FN26. Currently, the circuit courts are split as to whether duplicative aggravating factors are unconstitutional and as to the meaning of the Supreme Court's decision in Jones. The Fourth and Ninth Circuits have aligned with the Tenth Circuit and adopted their own variations of the rule in McCullah. See Allen v. Woodford, 395 F.3d 979, 1012-13 (9th Cir.2005) (finding that it was unconstitutional for the court and the prosecutor to present the defendant's prior crimes as the heart of three different aggravating factors); United States v. Tipton, 90 F.3d 861, 900 (4th Cir.1996) (“We agree with the McCullah court that ... a submission ... that permits and results in cumulative findings of more than one of the [statutory aggravating factors] is constitutional error.”). In contrast, the Eighth Circuit has rejected the duplicative aggravating factor theory when applied to the FDPA, see Purkey, 428 F.3d at 762, and the Fifth Circuit has withdrawn its support of the double-counting theory in light of Jones, see United States v. Robinson, 367 F.3d 278, 292-93 (5th Cir.2004) (“Although our case law once [supported the theory], the Supreme Court recently admonished that it does not support that theory of review.”)