« Should the SG now ask for a GVR in Claiborne and Rita? | Main | First-cut media coverage of Cunningham »

January 22, 2007

In (timely?) other news, Ninth Circuit approves use of acquitted conduct

Perhaps just to prove my claim that the Supreme Court is most pro-defendant appellate court on issues of sentencing procedure, the (purportedly liberally) Ninth Circuit today in US v. Mercado, No. 05-50624 (9th Cir. Jan. 22, 2006) (available here) approves judicial use of acquitted conduct to enhance sentences.  Mercado is a split decision with Judge Fernandez ending the majority opinion this way:

We join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.  We hold that Booker has not abrogated the previously prevailing constitutional jurisprudence that allowed sentencing courts to consider conduct underlying acquitted criminal charges.

Judge Betty Fletcher finishes here dissent this way:

Had the district court not rejected the jury's finding, defendants would have received a dramatically reduced sentence — a fact disputed by nobody in this case. To hold that any sentence beneath the statutory maximum is acceptable is not enough: Apprendi requires examination "not of form, but of effect."  Id.  And here the effect was to expose defendants to a dramatic increase in punishment based upon conduct for which the jury refused to authorize punishment in the only way it could — by acquitting defendants of the most serious conduct with which they were charged.  Neither Jones, nor Apprendi, nor Ring, nor Blakely, nor Booker countenance this result.  I would vacate defendants' sentences on Sixth Amendment grounds and remand to the district court for re-sentencing.

Hmmm... now that Cunningham can be added to Judge Fletcher's list, I have to say I think the dissent gets the better of the arguments.

January 22, 2007 at 01:42 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200d8342ec4a753ef

Listed below are links to weblogs that reference In (timely?) other news, Ninth Circuit approves use of acquitted conduct:

» Early Responses to Cunningham from SCOTUS blog
The AP has this report on the decision, and William Branigin of the Washington Post has an article here [Read More]

Tracked on Jan 22, 2007 2:04:02 PM

Comments

Acquitted Conduct enhancements would not be an issue if juries were told they had the option of finding a defendant "innocent" as well as "guilty" or "not guilty." Why should a defendant, accused of a crime by the state, not have the option of affirmatively clearing his name? Why only the option of being found guilty or not guilty, where not guilty only means the state didn't meet its burden, not that the defendant didn't commit the crime? I've long thought there should be those three options (and NG by reason of insanity if that's properly raised). If a jury found a defendant affirmatively innocent then that conduct would not be allowed to be used for sentencing enhancements. Sure, there would be questions as to what burden of proof the defendant would have to prove innocence (I think clear and convincing evidence would be correct), and whether a defendant would have to put on SOME evidence to be entitled to an "innocent" option on the verdict form.

Posted by: BruceM | Jan 22, 2007 2:53:55 PM

As a juror, if I were faced with a defendant whom I wanted to acquit on the most
serious charges, a ruling like this would make me want to acquit on all charges, regardless of whether I believed the defendant was guilty of the less serious charges or not.

Posted by: William Jockusch | Jan 22, 2007 4:37:37 PM

As a juror, if I were faced with a defendant whom I wanted to acquit on the most
serious charges, a ruling like this would make me want to acquit on all charges, regardless of whether I believed the defendant was guilty of the less serious charges or not.

I doubt that more than 0.01% of jurors are aware of this. Those who are can't really do anything about it, unless they can somehow persuade the other eleven to nullify. The standard instructions always specify that the jury should not concern itself with punishment (except in those limited cases that have a penalty phase).

Posted by: Marc Shepherd | Jan 22, 2007 5:26:07 PM

William, when the crying little victim tells her sob story, you probably won't feel that way anymore. stupid human nature.

Posted by: BruceM | Jan 22, 2007 6:35:15 PM

"William, when the crying little victim tells her sob story, you probably won't feel that way anymore. stupid human nature."

...nevermind, not even worth it.

Posted by: SPD | Jan 23, 2007 8:56:31 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB