The McVeigh ruling is summary in nature and unpersuasive. It has been soundly rejected by other courts. See United States v. Mayhew, 380 F.Supp.2d 936, 947 (S.D.Ohio 2005) (collecting cases and objecting to notion of asking jury to sentence defendant without considering the crime itself); United States v. Lentz, 225 F.Supp.2d 666, 669–70 (E.D.Va.2002) (noting there is nothing wrong with permitting jury to consider crimes for which defendant was found guilty beyond a reasonable doubt in determining appropriate sentence); United States v. Llera Plaza, 179 F.Supp.2d 464, 484 (E.D.Pa.2001) (noting that McVeigh seems to contravene the holding of Lowenfield ). Accordingly, we reject Lawrence's challenge to the grave-risk-of-harm aggravating factor.

A district court in Virginia rejected the analysis and holding in Friend, reasoning that "a broad rule of law that all non-statutory aggravating factors must 'equal' statutory aggravating factors in severity . . . would be inconsistent with Congress' directive for the jury to consider "any other aggravating factor for which notice has been given"'" under § 3592(c) and "the Supreme Court's mandate of 'individualized' sentencing." United States v. Lentz, 225 F. Supp. 2d 666, 672 (E.D. Va. 2002) (citing Tuilaepa, 512 U.S. at 972-73). The Supreme Court has emphasized that a wide range of additional information is allowed in capital sentencing.

To come before the sentencer, an aggravating factor cannot be unconstitutionally vague, overbroad, duplicative or irrelevant. See Tuilaepa, 512 U.S. at 973 (vagueness); Arave, 507 U.S. at 473 (overbroad); United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996), cert. denied, 520 U.S. 1253 (1997) (duplicative); United States v. Lenz, 225 F. Supp. 2d 666 (E.D. Va. 2002) (discussing vagueness, overbroad, double-counting, and relevance). Vague and overbroad aggravating circumstances are impermissible.

Id. Cases that have reached the opposite conclusion of Kacyznski and McVeigh include United States v. Lentz, 225 F. Supp. 2d 666 (E.D. Va. 2002); United States v. Llera Plaza, 179 F. Supp. 2d 464 (E.D. Pa. 2001); and United States v. Johnson, 136 F. Supp. 2d 553 (W.D. Va. 2001). As the Court stated in Tuilaepa, "the sentencer should consider the circumstances of the crime in deciding whether to impose the death penalty."

To come before the sentencer, an aggravating factor cannot be unconstitutionally vague, overbroad, duplicative or irrelevant. See Tuilaepa, 512 U.S. at 973, 114 S.Ct. 2630 (vagueness); Arave, 507 U.S. at 474, 113 S.Ct. 1534 (overbreadth); United States v. Tipton, 90 F.3d 861, 899 (4th Cir. 1996) (referencing the reasoning in United States v. McCullah, 76 F.3d 1087 (10th Cir. 1996) with respect to double-counting); Gregg, 428 U.S. at 192, 96 S.Ct. 2909 (relevance); United States v. Lentz, 225 F.Supp.2d. 666 (E.D.Va. 2002) (discussing vagueness, overbreadth, double-counting, and relevance); United States v. McVeigh, 944 F.Supp. 1478, 1486 (D.Co. 1996) ("[t]he guiding principles for judicial determination of the validity of particular non-statutory aggravators is the death penalty jurisprudence developed by the Supreme Court"). Vague and overbroad aggravating circumstances are impermissible. An aggravator is vague if it lacks "some `common-sense core of meaning . . . that criminal juries should be capable of understanding.'"