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December 8, 2005

Interesting Second Circuit ruling on use of unadjudicated juvenile conduct

On the heels of its recent Vaughn ruling approving the use of acquitted conduct in post-Booker sentencings, yesterday the Second Circuit in US v. Phillips, No. 04-2166 (2d Cir. Dec. 7, 2005) (available here), approved the use at sentencing of unadjudicated juvenile conduct.  The legal setting in Phillips concerns the application of an enhancement under guideline § 4B1.5(b) for "a pattern of activity involving prohibited sexual conduct."  Here is the start of the discussion section of the court's opinion:

Phillips raises two objections to the five-level enhancement under U.S.S.G. § 4B1.5(b): (1) that the enhancement for an offender engaged in a pattern of sexual exploitation of minors cannot be based on unadjudicated juvenile conduct; and (2) that the district court made insufficient factual findings to support the enhancement. Reviewing the district court's interpretation of the Sentencing Guidelines de novo and its findings of fact for clear error, we conclude that unadjudicated juvenile conduct may be properly considered under § 4B1.5(b), but that the district court's factual findings were insufficient.

December 8, 2005 at 01:35 PM | Permalink


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