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December 10, 2007

FSG are truly advisory (even in crack cases), but what about....

... guidelines increased based on acquitted conduct?   Justice Scalia continues to suggest that sentences based heavily on acquitted conduct present as-applied Sixth Amendment violations even within an advisory guideline system.

... below-guideline sentences reduced based on co-defendant or state/federal or fast-track  disparities?  Circuit courts have generally held it to be improper for a district court to consider these types of disparities, but these same circuits had also said consideration of crack/powder disparity was improper.  Especially in light of Justice Stevens' opinion in Gall, the Supreme Court seems to be blessing the consideration of co-defendant disparities, but state/federal and fast-track disparities present tougher questions.

... below-guideline sentences based on policy disagreements with the guidelines' overall severity?  Can a judge  act on his reasoned conclusion, perhaps supported by lots of data and the USSC's own reports, that he genuinely believes the guidelines are 25% too harsh in all non-violent cases?  That is, could a judge, after properly calculating a guidelines range as "the starting point and the initial consideration," consistently and repeatedly impose a sentence  25% below the guidelines in every non-violent case based simply on his policy conclusion that the guidelines set sentences to high in such cases to serve 3553(a)?

... above-guideline sentences imposed without advance notice of the reasons to the defendant? or ... within-guideline sentences based on an guideline manual that increased sentences since the time of the crime? As previously noted in prior posts, there are circuit splits on these issues in the wake of Booker that Rita and Gall and Kimbrough do not come close to resolving.

I am sure I have left out other post-Booker head-scratchers that will ensure there is lots to keep me and others plenty busy in the weeks and months ahead.

December 10, 2007 at 03:52 PM | Permalink

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Comments

I think Scalia is hinting more at the potential of 5th amendment due process challenges (based on the necessity of the "beyond a reasonable doubt" standard for relevant conduct, acquitted conduct, and certain enhancements) rather than the 6th amendment. A defendnat can waive the 6th amendment, but can't waive the standard of proof, it belongs to society as a whole.

Posted by: | Dec 10, 2007 5:20:13 PM

Question: When we talk about acquitted conduct, do we include conduct that was never charged? Has anyone ever heard of a sentence enhanced for conduct that was never charged. How about in the case of a defendant that has pled guilty?

Posted by: DAG | Dec 10, 2007 8:00:34 PM

My response to the first comment is, "You're crazy; he's clearly talking about the Sixth Amendment and he's clearly *not* limiting his point to acquitted conduct."

My response to the second comment is, "Of course, it happens all the time."

Posted by: Aaron | Dec 11, 2007 12:11:07 AM

DAG: Uncharged but "more likely than not occurred" conduct (a judge finds someone guilty of a hypothetical crime by a preponderance of the evidence, and it might even be a state crime!) is a different issue, and yes it happens all the time. I call that "nonexistant conduct" in a snarky tone. "Acquitted conduct" is a defendant being charged with Count A and Count B, being acquitted of Count A, and being sentenced based on the facts of both Count A and Count B. Or it could be a defendant being acquitted of a state crime 5 years ago, and that being used as relevant conduct if the federal sentencing judge finds that the defendant did commit the state crime by a preponderance of the evidence.

At least, that's my understanding of the term of art "acquitted conduct" in federal sentencing jurisprudence.

I still believe it is an unconstitutional abomination for acquitted conduct to be used to enhance a sentence. I also believe an acquittal should act as an estoppel of any civil proceeding based on the same facts at a lower burden of proof (acquitted at murder trial, victim's family can't sue for wrongful death a la O.J. Simpson case).

The solution to ALL of this is to have jury sentencing. Why is the federal system so against letting a jury find sentencing factors beyond a reasonable doubt?

Maybe the fact that I practice in Texas, one of the few states to have true jury sentencing, makes it more logical to me. Of course, we don't have guidelines here. Combine guidelines and jury sentencing and beyond a reasonable doubt standard for all factfinding in criminal trials, and the Sixth Amendment is orgasmically happy.

Posted by: bruce | Dec 11, 2007 6:07:55 AM

Is this worth noting? In Gall Justice Stevens wrote "We also hold the sentence imposed by the experienced District Judge, in this case was reasonable." Can an issue now be the tenure of the judge? This, of course, will cut both ways.

Posted by: bernie kleinman | Dec 14, 2007 8:53:52 AM

bernie I was wondering that, too. In a footnote they even said the judge had sentenced like 910 people over his career, or something like that. So, if I were appointed to the bench tomnorrow and you were the first person whom I sentenced, it logically flows that the reasonableness of my sentence (on appeal) is more questionable than the reasonableness of the judge in Gall. I doubt appellate courts will ever acknowledge or permit this line of reasoning, but Gall certainly does imply it, though probably inadvertently (just as a means to show why deference should be given to this judge, without intending to speak about less-experienced judges).

Posted by: bruce | Dec 14, 2007 1:44:49 PM

Bruce, the statement by the justice is clear and unequivocal. And, I also noted the footnote regarding the number of sentences imposed by the judge. I do not think it is inadvertent. But, while it can be raised on appeal, I cannot imagine telling a sitting district judge: Your Honor, you've only been on the bench six months, so perhaps you should do a little more homework.

Posted by: bernie kleinman | Dec 16, 2007 4:59:50 PM

Bruce, the statement by the justice is clear and unequivocal. And, I also noted the footnote regarding the number of sentences imposed by the judge. I do not think it is inadvertent. But, while it can be raised on appeal, I cannot imagine telling a sitting district judge: Your Honor, you've only been on the bench six months, so perhaps you should do a little more homework.

Posted by: bernie kleinman | Dec 16, 2007 5:00:15 PM

Bruce, the statement by the justice is clear and unequivocal. And, I also noted the footnote regarding the number of sentences imposed by the judge. I do not think it is inadvertent. But, while it can be raised on appeal, I cannot imagine telling a sitting district judge: Your Honor, you've only been on the bench six months, so perhaps you should do a little more homework.

Posted by: bernie kleinman | Dec 16, 2007 5:00:31 PM

Bruce, the statement by the justice is clear and unequivocal. And, I also noted the footnote regarding the number of sentences imposed by the judge. I do not think it is inadvertent. But, while it can be raised on appeal, I cannot imagine telling a sitting district judge: Your Honor, you've only been on the bench six months, so perhaps you should do a little more homework.

Posted by: bernie kleinman | Dec 16, 2007 5:00:47 PM

Thank you for advising us. We can be more ready to face whatever happens.

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