In Washington v. Recuenco, No. 05-83 (June 26, 2006), the Supreme Court held that the harmless error standard of review applied to a Blakely violation for failure to submit to the jury a fact that serves as a basis for a sentencing enhancement. The Supreme Court rejected the argument that this error constitutes "structural error."
The Court first rejected the argument that the case only involved a question of Washington State law. The Court noted that while the ultimate harmless error analysis in this particular case might well be affected or determined by State law, the issue whether harmless or structural error applied to a Blakely error was an issue for the Supreme Court.
Citing Neder v. U.S., 527 U.S. 1 (1999), which held that harmless error, not structural error, applied to review of a district court’s failure to submit an element of the offense to the jury, the Court found that the prosecution’s failure to prove a sentencing factor to the jury is also reviewable for harmless error. "Failure to submit a sentencing factor to thejury, like failure to to submit an element to the jury, is not structural error."
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