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91 Tul. L. Rev. 815 (2016-2017)

handle is hein.journals/tulr91 and id is 871 raw text is: Time Without the Crime? How the Federal Guidelines Allow Sentences Based on Unconvicted Conduct I. OVERVIEW .....................................815 II. BACKGROUND ............................. ......817 A. The Post-Booker Guidelines: Cross-Reference, Departure, and Vaiance ............... .....818 1. Cross References .......................818 2. Departures and Variances ..................819 B. Sixth Amendment Challenges and the Supreme Court's Open Door. ......................820 C Circuit Courts Foreclose As-Applied Constitutional Challenges to Enhanced Sentences Based on Judicial Fact-Finding.......... ......821 Ell. COURT'S DECISION ...............................822 IV. ANALYSIS ................................................... 824 I. OVERVIEW Deputy Sheriff Mark Hebert responded to a single-car accident early in the morning on August 2, 2007.' As the injured driver Albert Bloch was transported to the hospital, Hebert took the man's wallet to file into evidence.2 In the following days, however, Hebert used the 61-year-old's debit card to make various purchases and withdrawals in Bloch's name.3 Upon release from the hospital, Bloch reported the fraud and obtained a new debit card, but Officer Hebert obtained the replacement card as well and continued to siphon Bloch's funds. Hebert pled guilty to one count of deprivation of rights under color of law, five counts of bank fraud, and one count of aggravated identity theft.' Hebert's initial presentencing report (PSR) recommended 1. United States v. Hebert, 813 F.3d 551, 554 (5th Cir. 2015), cet. denied 137 S. Ct. 37 (2016). 2. Id. 3. Id. 4. Id. at 554-55. 5. Id at 556. 815

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