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November 15, 2007

An academic amicus Note for the Sixth Circuit on acquitted conduct

As noted in prior posts here and here and here, the Sixth Circuit is currently considering en banc review of the continuing use of acquitted conduct as a sentencing enhancement after Booker in the wake of a panel's notable per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  Though some commentators seem to think only the Supreme Court should be giving acquitted conduct issues second thought, a recent sudent note available here from SSRN lays out a thoughtful case that Watts is not the end of the story for this issue.  The Note by James Bilsborrow is entitled "Sentencing Acquitted Conduct to the Post-Booker Dustbin," and here is the abstract:

Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles.  He was charged, tried by a jury, and subsequently convicted on several counts of drug conspiracy.  But Mercado was acquitted of the most serious charges: participation in multiple murders, violent crimes in the aid of racketeering, and assault with a deadly weapon.  When the district court judge calculated Mercado's sentence under the Federal Guidelines, however, he obliged the prosecution request to consider Mercado's liability in the offenses for which the jury returned acquittals. As a result — and in spite of the jury's verdict — Mercado's Guidelines sentence increased by seventeen years.  The Ninth Circuit later affirmed this sentence increase.

Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997.  Ten years later, however, the Court's sentencing jurisprudence is radically changed; beginning with Apprendi v. New Jersey in 2000, and continuing through its recent invalidation of the California state guidelines system in Cunningham v. California, the Court has steadily invalidated modern guidelines sentencing practices as violative of the Sixth Amendment right to a jury trial. In short, the Court has held that guidelines regimes often unconstitutionally transfer a disproportionate amount of fact-finding power from the jury to the judge.  This Note argues that judicial consideration of acquitted conduct is one such aspect of guideline sentencing that the Court's recent jurisprudence renders unconstitutional.  Consequently, not only is Watts no longer controlling, but so also is the commonplace practice that allows a judge to replace a jury determination of guilt with his own.

November 15, 2007 at 01:12 PM | Permalink

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Comments

"Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997."

No, it's shocking, at least to this non-lawyer. Of everything I've learned here this is the most anti-Constitutional.

Posted by: | Nov 15, 2007 1:35:04 PM

The acquitted conduct argument gets hashed out in the comments every few months or so. It's not just about Watts.

http://sentencing.typepad.com/sentencing_law_and_policy/2007/07/eleventh-circui.html

Posted by: | Nov 15, 2007 3:07:38 PM

Again I would like to point out that Apprendi and Booker are by their own terms, concerned with penalties for crimes. Of course, penalties cannot be increased for acquitted conduct. But acquitted conduct is relevant when determining whether and to what extent a criminal offender has a risk of committing another crime.

There are three legal theories of a forbidden scenario. Theories are explanations. First the subject’s conduct was a crime, for which he or she may be penalized. Second, the subject’s crime was an offense for which he or she may be punished. Finally the subject in question is a criminal offender, which must be responded to if that person has a risk of committing another crime. These are three separate and distinct provocations, each of which stands alone.

People are not penalized or punished because they are at risk of committing another crime.

Posted by: Tom McGee | Nov 15, 2007 7:04:26 PM

The facts of Mercado present a more extreme and arguably stronger case for cert than those present in Grier. The cert petition in Mercado remains pending and was briefed by Sidley Austin -- does anyone have a copy of the petition?

Posted by: mike | Nov 15, 2007 11:05:49 PM

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