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September 30, 2005

A notable acquitted conduct dodge from the DC Circuit

I often forget to check the DC Circuit website for new Booker opinions because that court issues opinions infrequently (at least compared to other circuits).  But, a late-day check reveals that today the DC Circuit in US vs. Edwards, No. 04-3038 (D.C. Cir. Sept. 30, 2005) (available here), deftly discusses (and dodges) the issue of post-Booker consideration of acquitted conduct.

In Edwards, the defendant was acquitted on a firearms count at trial, but "the District Court found by a preponderance of the evidence that Edwards had possessed a firearm during the drug offense" and applied a two-level adjustment on that basis under the guidelines.  Though the Edwards court ultimately orders the ever-popular limited remand to deal with a Booker plain error issue, it closes with this notable discussion of the acquitted conduct issue:

Edwards makes an additional Sixth Amendment claim — that the District Court denied his right to a trial by jury when it sentenced him based on conduct for which he was acquitted.... Edwards argues that, under Booker's holding, his acquittal on the gun possession charge precludes the District Court from finding that fact by a preponderance of the evidence and then using it to raise his sentence.  The Supreme Court has upheld this practice against a Fifth Amendment double jeopardy challenge.  See United States v. Watts, 519 U.S. 148, 157 (1997).  The Court has not, however, determined whether the practice violates the Sixth Amendment. Cf. Booker, 125 S. Ct. at 754 (stating Sixth Amendment issue was not presented in Watts).  Although Edwards raises a potentially important question, we need not address it because we have already determined to remand the record according to Coles.

September 30, 2005 at 04:06 PM | Permalink

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