« Seeking help covering USSC alternatives to incarceration symposium | Main | A deadly legislative deal in the works in NC »

July 14, 2008

Another acquitted conduct sentencing affirmed

The Eighth Circuit today in US v. Canania, No. 07-1078 (8th Cir. July 14, 2008) (available here), affirms another long federal sentence than includes acquitted conduct enhancements. That fact alone does not make Canania especially notable, but the concurrence added by Judge Bright makes the ruling blogworthy.  Here is how that concurrence begins:

Bound by Supreme Court and Circuit precedent, I reluctantly concur with my colleagues in affirming Canania’s and Robinson’s convictions and sentences.  I write separately to express my strongly held view that the consideration of “acquitted conduct” to enhance a defendant’s sentence is unconstitutional.

Some related posts on acquitted conduct sentencing enhancements:

July 14, 2008 at 12:24 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e553b82aab8834

Listed below are links to weblogs that reference Another acquitted conduct sentencing affirmed:

Comments

How can a judge concur with an unconstitutional opinion? Can any judge be bound by unconstitutional precedent?

Posted by: George | Jul 14, 2008 12:38:24 PM

Judge Bright clearly feels strongly about this, but fails to address the counterarguments.

The state is entitled to sentence the defendant up to the statutory maximum only for those offenses either (a) admitted by the defendant or (b) found by a jury beyond a reasonable doubt. The Fifth and Sixth Amendments prohibit the state from going further. In other words, if a defendant is charged with (1) murder and (2) a small crack deal, but the jury acquits on murder and convicts on the crack deal, the judge may not sentence the defendant to more than the statutory maximum for the crack deal.

Moreover, in selecting a sentence between the statutory minimum and maximum, judges are allowed to consider all sorts of things that aren't tried to a jury and proven beyond a reasonable doubt, including letters of support from the community, evidence that the defendant was abused as a child, letters from people in the community that the defendant isn't pure evil, etc. Judges are also permitted to consider things like victim impact statements and testimony from the victim and the victim's family. To say that a judge may consider that but may not consider evidence that a defendant murdered someone because that was shown by a preponderance rather than beyond a reasonable doubt seems silly in light of all of that.

The problem with the scenario in footnote 6 is the crack law that makes it possible to get 40 years in prison for a $600 half-ounce hand-to-hand crack deal, not with the right of the judge to consider acquitted conduct along with the heap of other things that get tossed into the sentencing calculus.

I'd have a lot more respect for these content-free cathartic separate opinions if they'd address the counterarguments to their position instead of just wringing their hands.

Posted by: | Jul 14, 2008 12:43:18 PM

Compare the following:

1 This comes from Judge Bright's opinion at p. 18:

I also believe that the use of “acquitted conduct” to enhance a sentence violates
the Due Process Clause of the Fifth Amendment. As I noted above, the consideration
of “acquitted conduct” undermines the notice requirement that is at the heart of any
criminal proceeding. A defendant should have fair notice to know the precise effect
a jury’s verdict will have on his punishment.

2 This comes from Justice Scalia's concurring opinion in Apprendi (530 U.S. at 498). There's similar language in Blakely and some of the other Apprendi cases, but this quote best crystallizes the point that statutory maximums put defendants on notice of what punishments they face for committing certain crimes:

I think it not unfair to tell a prospective felon that if he commits his contemplated crime he is exposing himself to a jail sentence of 30 years – and that if, upon conviction, he gets anything less than that he may thank the mercy of a tenderhearted judge (just as he may thank the mercy of a tenderhearted parole commission if he is let out inordinately early, or the mercy of a tenderhearted governor if his sentence is commuted). Will there be disparities? Of course. But the criminal will never get more punishment than he bargained for when he did the crime, and his guilt of the crime (and hence the length of the sentence to which he is exposed) will be determined beyond a reasonable doubt by the unanimous vote of 12 of his fellow citizens.

------------------

Posted by: | Jul 14, 2008 1:09:48 PM

George:

"How can a judge concur with an unconstitutional opinion? Can any judge be bound by unconstitutional precedent?"

A judge of a lower court must follow relevant precedent of a higher court. The alternative is chaos.

Example: Do you think a Louisiana state judge could now impose the death penalty on a child rapist because the judge thought that Kennedy v. Louisiana was a mistaken reading of the Eighth Amendment?

Posted by: Bill Otis | Jul 14, 2008 1:26:48 PM

Thanks, Mr. Otis. That is clear. But it still does not explain how acquitted conduct can be a fact used in sentencing. Even if the sentence is no more than the statutory maximum and even if the defendant knew of that statutory maximum for the crime of conviction, there is no way the defendant can know the judge will sentence based on acquitted "facts." That just reeks of being contrary to everything our jury system stands for.

It also reeks of overcharging abuse. An ADA need only overcharge knowing there is not enough evidence on that overcharge, but still knowing the acquittal of the overcharge will lead to the longest sentence possible on the crime that has sufficient evidence. Don't tell me it can't happen. I watch "Law and Order" now and then.

Of everything I've learned here sentencing based on acquitted conduct is the most shocking and is likely the most able to subvert respect for the law because it subverts our system at its core: the jury.

Posted by: George | Jul 14, 2008 3:28:07 PM

George:

I really don't see the big deal here. The truth of the matter is that the judge is going to take into account all sorts of things, including his/her mood, their political opinions, etc. If the judge wants to impose a withing guidelines sentence, even the most flaccid of reasons will do so. If he can't use acquitted conduct, he/she will find something else. As a matter of pure legal theory, I think acquitted conduct is unconstitutional. But it is simply not material to the law. Taking acquitted conduct out of the picture would not change a single sentence.

Posted by: Daniel | Jul 14, 2008 3:59:46 PM

Even if it never changed a single sentence, at least it would constitutional. That is very important to some people.

Posted by: George | Jul 14, 2008 4:09:58 PM

George:

"Even if the sentence is no more than the statutory maximum and even if the defendant knew of that statutory maximum for the crime of conviction, there is no way the defendant can know the judge will sentence based on acquitted 'facts.' That just reeks of being contrary to everything our jury system stands for."

I agree with you to an extent. As I said in a recent article I wrote and Doug linked a few days ago, my preferred solution to the Apprendi/Blakely problem would have been to require the government to prove sggravating sentencing facts BRD. But the Booker remedial majority said otherwise, allowing such proof by a preponderance so long as the guidelines became advisory. To my way of thinking, this evaded the problem rather than solving it, and was grossly contrary to Congressional intent as well. But, again, I didn't have a vote.

Like you, I think this slights the importance of the jury, but it does replicate pre-guidelines practice and it preserves a real offense sentencing system. These are important virtues.

"It also reeks of overcharging abuse. An ADA need only overcharge knowing there is not enough evidence on that overcharge, but still knowing the acquittal of the overcharge will lead to the longest sentence possible on the crime that has sufficient evidence."

I disagree on this point. The prosecutor does not know in advance whether the jury will convict on Count X; trials are full of surprises.

But the more significant point is that, if the prosecutor were indeed as nefarious as you suggest, he would simply charge the one count he knows is ice cold and leave everything else out. Upon conviction, the defendant could not complain that bringing in his other bad acts for sentencing was the use of "acquitted conduct," since there never would have been an acquittal.

The Apprendi line of cases did not terminate the long pre-existing practice of allowing the sentence to be based on facts shown by a mere preponsderance. Those cases hold only that if the court wants to exceed the statutory maximum, there must be proof BRD.

Finally, it is not the case that the defense is taken by surprise by the use of acquitted conduct. Indeed, very little is better known in sentencing law than that the defendant will be facing just that. For years use of acquitted conduct has been the practice, sanctioned not merely by the sentencing guidelines but by the Supreme Court's decision more than ten years ago in Watts, and by the uniform holdings of the courts of appeals.


Posted by: Bill Otis | Jul 14, 2008 4:23:14 PM

Decisions like these violate not only a sense of fairness and the integrity of our criminal justice system; it also violates our system of checks and balances where the judge takes charge of the law and the jury is the trier of facts.

A judge, when sentencing a defendant, can be said to be in violation of a defendant's 6th Amendment right when departing from the sentencing guidelines IF the departure is based on acquitted conduct. Enhancing the sentence of a defendant BASED on acquitted conduct undermines our jury system.

Likewise, if a defendant refused trial by jury and had a judge determine the outcome of his actions and that judge acquitted the defendant, then the judge enhancing the sentence can be said to have overruled that judge's decision to enter his own verdict on the case in which the defendant was acquitted without and thus violating the defendant's due process right, 5th Amendment.

A judge can use several different factors in making his decision when sentencing a defendant. But those factors, in order for them to be LEGAL and not in violation of a defendants due process rights MUST be LEGAL factors. Our laws are suppose to protect us from bias. And in their ethical code of conduct, judges are warned against giving the slightest hint of bias.

I kinda understand that there may be times in which a judge may be permitted to use acquitted conduct to enhance a sentence--for example when a defendant confesses to a crime but the case is thrown out because he wasn't Mirandized. But even in this case it becomes more than just "ifee" because it truly does violate the defendants due process right to trial by jury.

If we cannot trust the last recourse we have to set things straight in the legal arena and the system that holds us accountable for our wrong doing and acquits us when we are falsely accused, then we might as well stop calling this nation the United States of America and name ourselves after any other nation that has NO respect for the rule of law or its citizens.

Posted by: Angelina | Jul 14, 2008 6:09:52 PM

"The prosecutor does not know in advance whether the jury will convict on Count X; trials are full of surprises."

Prosecutors sometimes think that everyone sitting on the jury is less than savvy.

"if the prosecutor were indeed as nefarious as you suggest, he would simply charge the one count he knows is ice cold and leave everything else out."

Nefarious prosecutors are known to be corrupt but this very act. They pile charges upon charges they know are not necessary or applicable just to engage in mental gymnastics about how GREAT they are if they get a conviction. Research indicates this to be a redflag.

Posted by: Angelina | Jul 14, 2008 6:15:54 PM

"Taking acquitted conduct out of the picture would not change a single sentence."

That's not true. Because at the core of a judge's decision to levy a sentence, s/he attempts to predict FUTURE criminality based on past criminal history (which IS a legal factor). Here the judge criminalize's an individual that was acquitted for whatever reason and uses that acquittal to enhance the sentence.

"Of everything I've learned here sentencing based on acquitted conduct is the most shocking and is likely the most able to subvert respect for the law because it subverts our system at its core: the jury."

Plain and simple...you're RIGHT.

Posted by: Angelina | Jul 14, 2008 6:22:46 PM

Angelina, You raise a lot of interesting points, but you probably need to cite authority for them. For example, you write, "A judge, when sentencing a defendant, can be said to be in violation of a defendant's 6th Amendment right when departing from the sentencing guidelines IF the departure is based on acquitted conduct." However, in order to make your argument true, you would have to cite the Supreme Court's most recent authority on the subject. I am sure that you have it at your fingertips. Mmmkay?

Posted by: S.cotus | Jul 14, 2008 6:30:11 PM

S.cotus, is there no room for thoughts not based on the Court's opinions? Because I can swear I have seen you post many ramblings that are not the Court's decisions or opinions.

What happened with common sense and logic? But I'm so damn sure that what I think has been thought by someone else that I will dig up a credible source for you.

How do you like THAT?

Posted by: Angelina | Jul 14, 2008 6:46:08 PM

Okay, you didn't provide a single Supreme Court case on point.

“S.cotus, is there no room for thoughts not based on the Court's opinions?”

When it comes determining what authority binds a District Court, where there are holdings on point from the Supreme Court, the answer to your question is no. If you want to make a policy argument, at least have the good sense to label it as such, rather than claiming that the opposite of your position is unconstitutional.

For example, compare:

Using acquitted conduct to increase a sentence of a defendant violates the Sixth Amendment.

with

Using acquitted conduct to increase a sentence of a defendant is bad policy because it diminishes the role of juries in shaping our process of criminal justice.

I can accept the second point, but your first one is simply not a correct statement of the law as it is applied in District courts.

It is common practice to claim that any position is supported by “common sense.” So what?

Posted by: S.cotus | Jul 14, 2008 6:54:17 PM

I will choose not to respond to the person who cited a television show as evidence of how the criminal justice system operates...


Let's not forget that the district judge is not compelled to make a relevant conduct finding on acquitted conduct. The judge can - but if he doesn't that factual finding would be essentially impossible to reverse on appeal. The district judge here clearly felt that the firearms evidence was relevant to his decision. When the guidelines were mandatory Judge Bright wrote dozens of opinions bemoaning the lack of individualized discretion given to district judges. Now that they are advisory he bemoans the excessive discretion given to the judge to find relevant conduct after an acquittal.

Not to mention that despite making a firearm enhancement finding the judge departed downward with regard to one defendant and picked a sentence on the other that was not at the bottom of the range. In other words, he thought about and did not just act like an automaton (to use Judge Bright's term).

Also, this has nothing to do with the defendant not being on notice - as ably pointed out above the defendant is on notice of the statutory maximum and minimum punishments for the offense. Suppose there were no guidelines and the judge pulled the same sentences out of thin air - without explanation or an ability of the defendant having the opportunity to litigate relevant conduct? Would we call that sentence a violation of due process? No, we would call it typical judicial discretion (as exercised in numerous state courts) and move on. It is only because the judge makes a fact finding under the advisory guidelines that we even know this is going on. We could just be dumb and happy about the sentencing decision.

We should want judges to have all relevant information about a case. Many of the things that a judge uses to make that decision aren't going to even be illegal. (For example, imagine a judge who says to the defendant "you haven't worked a day in your life, I'm giving you 220 months.") How is acquitted conduct that enhances a sentence different from any number of other things which will influence a judge in his decision?

Posted by: Alan O | Jul 14, 2008 6:57:51 PM

I wonder if you want more than this after you said the following on Nov 15, 2007 11:36:56 AM:

"The problem with precedent from the Supreme Court, is different people have different views of what it means. Many believe that Apprendi-Ring-Blakely represented a sea change in 6th amendment jurisprudence, and stuff that came before them is overruled. Whether the court sees it that way, or wants to be intellectually honest about whether White actually can be reconciled with Blakely is another story."
http://sentencing.typepad.com/sentencing_law_and_policy/2007/11/opposition-to-l.html

But here goes for your mental masturbation pleasure...

In re to a previous conviction, the Court said, "any fact that INCREASES the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." --Apprendi v. New Jersey, 500 U.S. 466 (2000).

In the mean time, work on some Sudoku puzzles to help you with logic. The ability to think OUTSIDE the box should be coveted by all attorneys. Having great generalization skills help too. :D

Posted by: Angelina | Jul 14, 2008 7:12:30 PM

S.cotus said:

"Okay, you didn't provide a single Supreme Court case on point.

“S.cotus, is there no room for thoughts not based on the Court's opinions?”

When it comes determining what authority binds a District Court, where there are holdings on point from the Supreme Court, the answer to your question is no. If you want to make a policy argument, at least have the good sense to label it as such, rather than claiming that the opposite of your position is unconstitutional.

For example, compare:

Using acquitted conduct to increase a sentence of a defendant violates the Sixth Amendment.

with

Using acquitted conduct to increase a sentence of a defendant is bad policy because it diminishes the role of juries in shaping our process of criminal justice.

I can accept the second point, but your first one is simply not a correct statement of the law as it is applied in District courts.

It is common practice to claim that any position is supported by “common sense.” So what?"

You're a cocky little poodle, aren't you? Let me assure you that I can hang with the BEST.

Posted by: Angelina | Jul 14, 2008 7:18:13 PM

"How is acquitted conduct that enhances a sentence different from any number of other things which will influence a judge in his decision?"

Simple. "The Court said, "any fact that INCREASES the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." --Apprendi v. New Jersey, 500 U.S. 466 (2000)."

Posted by: Angelina | Jul 14, 2008 7:25:21 PM

"But the more significant point is that, if the prosecutor were indeed as nefarious as you suggest, he would simply charge the one count he knows is ice cold and leave everything else out. Upon conviction, the defendant could not complain that bringing in his other bad acts for sentencing was the use of "acquitted conduct," since there never would have been an acquittal."

Mr. Otis, same thing: subversion of our system. Statutes have to spell out, in plain enough language, what the laws are and what the penalties are for violating those laws. So maybe I'm complaining about something even more fundamental than the jury. If person X violates law Y, the statutes determine what the potential sentence is. The court can only pronounce that sentence upon a finding BRD, which is where the jury (or judge) comes in.

If person X violates law Y and may or may not have also violated law Z, but then the court sentences on the assumption the the person did violate law Z, then what is the point of laying out the statute of law Z if it need not be proved BRD? True, the defendant will not be sentenced as if convicted of both Y and Z, but the enhancement will, after found guilty of Y, assume guilt of Z (in other words, we're guessing but it's close enough for government work).

We just jumped from the necessity of proving BRD to a mere preponderance of the evidence before resulting in the loss of liberty for violating law Z. There is still a loss of liberty, though only an enhancement, for violating law Z. That would be fairly clear if the judge said, "I was going to sentence you to 30 days, but because of your acquitted conduct, and for no other reason, I'm sentencing you to 30 years."

So I think the disrespect, contempt, skepticism, what have you, goes much deeper than only the jury. It goes to statutes and to the heart of the legal system itself. That is because everyone assumes that before a sentence for crime Z is possible it must be proved BRD. That it is only an enhancement is merely slight of hand and may be why it is so necessary nowadays to outlaw jury nullification.

On the other hand, the rest of your comment makes clear that taking the various factors into consideration may be all that keeps the system human. That paints us into a corner.

Posted by: George | Jul 14, 2008 7:39:15 PM

Angelina, someone will correct me if I'm wrong, but these sentences are not necessarily "beyond the prescribed statutory maximum." If I understand correctly, there is a guideline sentence and there is statutory maximum sentence. They do not have to be the same. A judge can depart from the guidelines and yet remain within what is statutorily permissible as a sentence.

That the statutory maximum could the the ace in the hole to extort a guilty plea to a within guideline sentence is another story.

Posted by: George | Jul 14, 2008 7:46:46 PM

Angelina, In these cases, nobody is arguing that a sentence was increased beyond the *statutory* maximum via the use of acquitted conduct. Not one. You obviously have no idea what is going on or even what the debate is about.

Apprendi contains no holding that a “fact” that increases a sentence from one point below the statutory maximum to another point also below the statutory maximum must be proven to the jury.

Posted by: S.cotus | Jul 14, 2008 8:00:51 PM

George, that's true. In my humble opinion, the important factor is that case was not the upward departure that exceeded the prescribed statutory max, but the fact that there was a UPWARD departure based on a fact...

With acquitted conduct, the facts of the case had been previously presented to the jury and the defendant was acquitted. In this case the defendant was found guilty of this and that but not that and the other so how much acquitted conducted played in the enhancement of the sentence is really...

Think about logically.

A defendant is acquitted through DNA evidence. He commits a drug related crime for some stupid reason. Instead of getting 20 years he gets 23 years, 2 years shy of the prescribed statutory maximum. The judge cites the defendant is getting an upward departure because of acquitted conduct.

Tell me, do you have such little faith in our Court to believe that most Justices will find this OK and let that be the rule of law? I don't think the spirit of what was said above received the decision it did simply because it exceeded the max. Justices made it a point to indicate the violation of due process--trial by jury (in the case the violation of the integrity of our justice system) and not just leave it at an upward departure as if to indicate a violation of cruel and unusual punishment.

I don't know. S.cotus might disagree with my opinion.

Posted by: Angelina | Jul 14, 2008 8:14:23 PM

Scot, do some work. Make Google (in this case WestLaw) YOUR *itch.

Here goes. Next time I won't be playing your "Research and Link *itch."
http://docs.justia.com/cases/supreme/530/466.pdf
http://supreme.justia.com/us/530/466/index.html

"Held: The Constitution requires that any fact that increases the penalty
for a crime beyond the prescribed statutory maximum, other than the
fact of a prior conviction, must be submitted to a jury and proved beyond
a reasonable doubt. Pp. 474–497.

(a) The answer to the narrow constitutional question presented—
whether Apprendi’s sentence was permissible, given that it exceeds the
10-year maximum for the offense charged—was foreshadowed by the
holding in Jones v. United States, 526 U. S. 227, that, with regard to
federal law, the Fifth Amendment’s Due Process Clause and the Sixth
Amendment’s notice and jury trial guarantees require that any fact
other than prior conviction that increases the maximum penalty for a
crime must be charged in an indictment, submitted to a jury, and proved
beyond a reasonable doubt. The Fourteenth Amendment commands
the same answer when a state statute is involved. Pp. 474–476.
(b) The Fourteenth Amendment right to due process and the Sixth
Amendment right to trial by jury, taken together, entitle a criminal
defendant to a jury determination that he is guilty of every element
of the crime with which he is charged, beyond a reasonable doubt.
E. g., In re Winship, 397 U. S. 358, 364. The historical foundation for
these principles extends down centuries into the common law. While
530US2"

Now, if you click on the pdf file and you then Ctrl+F you can do a search of the pdf file. I'm sure you didn't buy your way into law school.

Posted by: Angelina | Jul 14, 2008 8:30:44 PM

Angelina,

The important words that should be capitalized in the Apprendi quote is STATUTORY MAXIMUM, not increases.

A jury's finding of not guilty is a determination that the government's proof did not meet its burden. It is not a finding that something didn't happen or that the defendant is innocent. Even a prosecutor as smart as me can't make a judge find a fact that he doesn't believe is true.

Posted by: Alan O | Jul 14, 2008 8:35:30 PM

Alan, here goes. Look into this case if the logic is not clear.

ALMENDAREZ-TORRES v. UNITED STATES (deals with what the Court said in re recidivism--these are crimes committed and defendant proven guilty)
http://docs.justia.com/cases/supreme/523/224.pdf

JONES v. UNITED STATES (penalty enhancing findings to be determined by a judge by a preponderance of the evidence)
http://docs.justia.com/cases/supreme/526/227.pdf

Though you may not find the answer you are looking for directly, it tells much on how the court sees acquittal conduct and upward deviation.


G'night

Posted by: Angelina | Jul 14, 2008 9:02:04 PM

Let me correct that...how the court MIGHT see....

Posted by: Angelina | Jul 14, 2008 9:02:59 PM

"Even a prosecutor as smart as me can't make a judge find a fact that he doesn't believe is true."

LOL Alan, perhaps you should lower yourself a bit an then perhaps you can see a different perspective other than your own.

I bet you a Sprite that if this case goes to the Court, Justices will NOT be very happy with the gross violation of a defendant's due process rights in re acquittal conduct. ;-)

Really, have a great night. I'll be back to play tomorrow.

Posted by: Angelina | Jul 14, 2008 9:08:26 PM

Judge Bright's concurrence makes a slightly more nuanced point about the notice function of the jury. There is no doubt that a defendant could recieve a sentence up to and including the statutory maximum for any particular offense. Rather, Judge Bright's point with respect to notice goes to the idea that a defendant should have some idea as to what "facts" a judge may consider during sentencing. He's not suggesting that a judge cannot consider facts never considered by a jury (such as family life, history of substance abuse, etc.) particular to a given individual in shaping a sentence within an indeterminative regime. Rather, he's simply arguing that certain facts (or conduct) underlying the charge(s)/count(s) of which a defendant has been acquitted should not thereafter factor into sentencing. Thus, the jury's acquittal with respect to any given count should give the defendant notice that in fact the conduct underlying that count will not thereafter be used to punish him or her. Granted, a more sophisticated version of this opinion would have considered the nuances of "acquitted conduct" further -- or perhaps attempt to categorize the type of acquitted conduct which may be used and that which may not. For example, if a jury finds that a defendant possessed between 5 and 50g of cocaine, a court should not thereafter conclude that the defendant in fact had 500g of cocaine - and use that fact as a determinitive factor in his senentence. On the other hand, consider for example that a person is convicted of armed robbery but acquitted on a related weapons charge. There is nothing incoherent in a judge using a "weapon enhancement" in that situation because the presence (or use - depending on the statutory phrasing) of a weapon is presumably an element of armed robbery. (Though analytically one could say that the judge is not relying on "acquitted conduct" but conduct underlying a count upon which the defendant was found guilty, i.e., the use of acquitted conduct when that conduct underlies multiple counts is not unconsitutional if the jury needed to find the existence of that conduct to sustain a guilty verdict with respect to any given count.)

That all said, opinions of this nature ordinarily serve as a sounding board, rather than a treatise on the subject (especially in light of the fact that several judges have already written extensively, albeit not necessarily persuasively on this issue).

Posted by: opinions opinions | Jul 15, 2008 12:15:10 AM

Agreed with S. Cotus. Angelina, the statutory maximum is the key to the Apprendi line of cases.

*Suppose that there's a law that says "anyone who intentionally shoots another person goes to jail for 0-5 years upon conviction."

*If a defendant admits that he's guilty, or if a jury finds beyond a reasonable doubt that he intentionally shot another person, the judge can send him to jail for 5 years. In selecting a sentence between 0 and 5 years, the judge uses "judicial discretion," and can consider just about anything, including acquitted conduct.

*What Apprendi says is only that the judge may not use facts (other than a prior conviction) that are not admitted or proven to the jury beyond a reasonable doubt to sentence the defendant to more than 5 years.

opinions opinions, thanks for the defense of Judge Bright's opinion. That puts it in a bit more reasonable light, but I think that parts of your reading are a bit of a stretch. The opinion itself was necessarily short, but seemed to me to framed more in emotional terms than constitutional terms. Perhaps your explanation is what he meant when he said that "A defendant should have fair notice to know the precise effect a jury’s verdict will have on his punishment," but I'm not sure where he gets that from. Judge Bright asserts that the Apprendi line of cases "re-affirmed the jury's central role in the criminal justice system," but those cases did so in a particular way, as I have tried to explain above. The jury's role--or the "precise effect" of its verdict--is to set the maximum punishment for the defendant. After that, it's up to the judge.

The implication is that the role of the jury is tied to the statutory maximum, and that it's up to legislatures to tinker with the balance between the roles of the jury and the judge. (This leaves out the issue of prosecutorial discretion in charging). Thus, perhaps groups like Families Against Mandatory Minimums should focus on "Fairer Statutory Maximums," or "More Precisely Defined Statutory Offenses," or something similar.

Posted by: | Jul 15, 2008 11:07:13 AM

Ok, I'm with you although I disagree with you but for what I quoted. There seems to be four, maybe even more, perspectives on the interpretation of what the Court said in Apprendi.

a. Apprendi relates to exceeding the maximum sentence.
b. Apprendi relates to exceeding a maximum sentence when the fact (other than past criminal history) has not been reviewed by a jury.
c. Apprendi relates to exceeding a maximum sentence when the fact (an element) has not been reviewed by a jury.
d. Apprendi relates to upward departure of sentencing guidelines (maximum only matters in that judge went OVER the MAXIMUM penalty) for a fact not yet presented to a jury to prove beyond reasonable doubt.

Then "opinion, opinion" presents another perspective of acquitted conduct.

1. Acquitted conduct can be (according to opinion, opinion) an acquittal based on a prosecutor's failed attempt to prove a necessary element of a crime--as in having a gun in an "armed" robbery case. Or in this case, the prosecutors failed attempt to prove that all of the ingredients to make Meth and that the gun that was there belonged to the defendant, therefore, the defendant was acquitted because the juror were "too stupid" to know the otc ingredient and gun belong to the defendant.

2. Acquittal of a charge (murder, rape, drug trafficking, armed robbery, etc...)

The Court said, "any fact that INCREASES the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." --Apprendi v. New Jersey, 500 U.S. 466 (2000).

And you say..."What Apprendi says is only that the judge may not use facts (other than a prior conviction) that are not admitted or proven to the jury beyond a reasonable doubt to sentence the defendant to more than 5 years."

By making this statement, you are affirming that acquitted conduct IS constitutional (by implication); however, your logic is faulty. No way can acquitted conduct be constitutional, at least based on what you and the Court said in re Apprendi--look at the bold-type phrase above.

The reason why your conclusion is faulty is because you admit in your own words that the Court said in Apprendi that "the judge may not use facts (other than a prior conviction) that are not admitted or proven to the jury beyond a reasonable doubt to sentence the defendant." In CONVICTIONS, the jury has found the defendant GUILTY. The Court ruled, and I posted the case above, a defendant's criminal history (of CONVICTIONS) CAN be used in making these decisions. However, in your words and that of the Court, those FACTS NOT yet proven by a JURY BEYOND A REASONABLE DOUBT CANNOT BE USED. In acquitted conduct the facts ARE tried by the jury and as the trier of facts, the jury finds the fact(s) LACKING.

The Court CANNOT say that a fact MUST be admitted or proven by the jury beyond reasonable doubt and then turn around and when the jury has done JUST THAT, rescind in that decision and affirm that acquitted conduct IS constitutional when in doing so the Court is joining in with the sentencing judge in stating although tried by jury, the fact finder in the case is the sentencing judge and NOT the jury. To some, the decisions of the court makes NO sense. To me they make every bit of sense.

I don't think Apprendi was a case of cruel and unusual punishment in that the sentencing judge exceeded the maximum penalty for an offense that carries a defined maximum. But a case in which the Court makes the statement loud and clear that if a fact is affect the sentencing outcome to EXCEED a maximum sentence, NOT that it canNOT exceed it or it will fall in the realm of the 8th Amendment, that FACT, if it is one that is determined to be a fact or not by a jury, MUST be presented to a jury where the jury must prove the fact beyond a reasonable doubt.

So to those who disagree with my position, and I am not afraid to be the Lone Witch on here, acquitted conduct is unconstitutional and should NOT be used in determining sentences and that Apprendi has in essence said it's unconstitutional, the decision in Apprendi then begs the question...would the Court have stayed the decision of the sentencing judge in Apprendi if the sentencing judge sentenced Apprendi to even 2 years BELOW the maximum or within the guidelines despite the "fact" responsible for INCREASING the sentence had not been proven to the jury beyond reasonable doubt?

Respectfully,

The dimmest bulb in the box.

Posted by: Angelina | Jul 15, 2008 4:02:35 PM

I rest my case. If Angelina's comments are not "disrespect, contempt, skepticism, what have you" they are at least a recognition of how confusing the law is, and that itself is enough for "disrespect, contempt, skepticism, what have you."

I think Angelina is arguing the same as I am: sentencing based on acquitted conduct results in the loss of liberty without proof beyond a reasonable doubt. That the loss of liberty is cloaked in an enhancement makes no difference. That the judge could find other reasons for the same enhanced (statutory maximum) sentence makes no difference.

Posted by: George | Jul 15, 2008 5:01:53 PM

Regarding all of the doom and gloom arguments about how taking acquitted conduct off the table would change a prosecutor's charging decisions, that is complete hogwash. It will not change charging decisions at all. In the federal system, something like 97% of all cases plead out, so in only 3% of the cases does the possibility of acquitted conduct ever show up. Further, of those 3%, a decent number of those cases are either (1) so strong that there will be no acquittals or (2) so weak that there will be no conviction (I know, this number is low, but it is still a number greater than zero). So, the possibility of some convictions and some acquittals would only arise in less than 3% of the cases. Prosecutors charge based on the norm, not the exception. They certainly aren't making charging decisions while ringing their hands saying "oh golly, what if this is one of those less than 3% of the cases."

To the post by Alan O (July 14 6:57 pm), you make a fair point that a judge need not actually make the preonderance of the evidence finding that the acquitted conduct did occur, that this finding would be nearly unimpeachable on appeal, and thus avoid the whole problem. This is very true, and I have seen a couple of judges do just that and acknowledge it back in chambers. But do we really want that to be the answer? Must a judge that finds the use of acquitted conduct repugnant check his or her intellectual honesty at the door?

And to the person that said a judge does not have to consider acquitted conduct, this is also not true, at least thus far. One of the cases Professor Berman discussed a while ago, the Ibanga case http://sentencing.typepad.com/sentencing_law_and_policy/2008/04/fourth-circuit.html , featured just that point. The district judge found that the acquitted conduct did occur, discussed its guidelines range implication at length, and then said he was not considering acquitted conduct. The Fourth Circuit reversed and said that the judge had to consider acquitted conduct under Section 3661.

Posted by: A. Nony. Mous. | Jul 15, 2008 5:04:04 PM

If "In the federal system, something like 97% of all cases plead out, so in only 3% of the cases does the possibility of acquitted conduct ever show up. Further, of those 3%, a decent number of those cases are either (1) so strong that there will be no acquittals or (2) so weak that there will be no conviction (I know, this number is low, but it is still a number greater than zero)" is true, then why are you so opposed to judges NOT being able to use acquitted conduct?

You stated, "a judge need not actually make the preonderance of the evidence finding that the acquitted conduct did occur."

Then the judge will need to examine the defendants criminal CONVICTIONS before he can engage in "prepondering" of the evidence. And those convictions should at minimum be closely related in types of offenses before the judge can make the preponderance of the evidence that the acquitted conduct DID occur.

The defendant: Your Honor, I have been acquitted of partial birth abortion because I'm a MAN. How can you make a preponderance of evidence that I was guilty of that crime when I'm a MAN and can't get pregnant?!!!! Your Honor, that conduct has NOTHING to do with my having the amount of drugs found in my truck. You can't enhance my sentence based on the only other conduct that brought me in contact with the justice system.

Judge: What do you mean? It says here that I can use acquitted conduct based on preponderance of evidence to enhance your sentence. Hush up before I hold you in contempt of court!

Can you see that cartoon now?

Last thing here...

The US Supreme Court is the HIGHEST court of the land not because lower courts always get it right. ;-)

Posted by: Angelina | Jul 15, 2008 5:43:56 PM

George, the sad fact is that some people ONLY know ideological labels and don't understand that justice goes BEYOND political affiliation.

Posted by: Angelina | Jul 15, 2008 5:48:19 PM

Angelina,

1Compare your quote of what I said to what I actually said, and I hope that you (or others, at least) will see that you're missing the point.

You wrote that I "admit in [my] own words that the Court said in Apprendi that "the judge may not use facts (other than a prior conviction) that are not admitted or proven to the jury beyond a reasonable doubt to sentence the defendant."

The words you omitted from the end of the sentence are: "to more than 5 years." (original emphasis) (5 years being the statutory maximum in my hypothetical).

The difference between what I actually said and the portion you quoted is the essence of the point I'm trying to make. I don't think I can state it any more clearly than I have. The Apprendi line of cases has nothing to do with the Eighth Amendment.

2 For others still reading, Justice Scalia's concurring opinion in Kimbrough is the only coherent suggestion I've seen for how Apprendi could potentially apply to sentences under the statutory maximum. If district court judges put such a thumb on the scale in favor of the Guidelines that they become mandatory as they were before Booker, then there is a Sixth Amendment problem with that and acquitted conduct (along with everything else) would have to be admitted or proven beyond a reasonable doubt to the jury before it could be considered at sentencing.

3. Angelina, I'm not sure that you know what "preponderance of the evidence" means. It means "more likely than not."

Posted by: | Jul 15, 2008 6:04:20 PM

Jul 15, 2008 6:04:20 PM:

An intelligent post you have up.

The problem of distorted and incomplete quotations seems to me to be growing, and it's a bad thing.

One way I have of assessing who is speaking in good faith and who isn't is to look at whether the poster merely characterizes his opponent's words, or instead is willing to give a full and in-context quotation of them.

Posted by: Bill Otis | Jul 15, 2008 6:21:49 PM

You've gone from anon to being invisible.

**"The words you omitted from the end of the sentence are: "to more than 5 years." (original emphasis) (5 years being the statutory maximum in my hypothetical)."

If it were possible I would link a print screen to this post so you can see that I quoted you as..."What Apprendi says is only that the judge may not use facts (other than a prior conviction) that are not admitted or proven to the jury beyond a reasonable doubt to sentence the defendant to more than 5 years."

"The difference between what I actually said and the portion you quoted is the essence of the point I'm trying to make. I don't think I can state it any more clearly than I have. The Apprendi line of cases has nothing to do with the Eighth Amendment."

I NEVER made a statement that YOU made such a claim. It was I who said that had the MAXIMUM been THE issue here, then a claim for...etc...

Don't be fooled. Just because I play on words in an effort to lighten up the discussion doesn't mean that I don't know what I'm talking about or fail to understand what preponderance of evidence means.

And I'm glad you are getting closer to understanding that the world doesn't revolve around only one perspective.

S.cotus asked me to get some sources in support of my "opinions." I found it 15 minutes ago. It looks like an interesting read but I haven't read it yet.

Posted by: Angelina | Jul 15, 2008 6:34:43 PM

http://img502.imageshack.us/my.php?image=rebuttalquotesm0.jpg

I suggest someone here read what BOTH people have said instead of following yourself while you post anonymously. ;-)

Posted by: Angelina | Jul 15, 2008 6:58:29 PM

Angelina, I'm trying to understand your position and respond to it, but I'm not sure what your position is. If you're making puns or speaking figuratively, it's mostly sailing right over my head.

I'm also not convinced that you understand what Apprendi holds and why that's relevant to this thread. You've quoted Apprendi numerous times, but I think you're ignoring the last part of the sentence.

This is how you quote it:

"Any fact that INCREASES the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." --Apprendi v. New Jersey, 500 U.S. 466 (2000).

But you ignore this part:

"Any fact that INCREASES the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." --Apprendi v. New Jersey, 500 U.S. 466 (2000).

In other words, if the fact considered doesn't push the sentence over the statutory maximum, the Apprendi line of cases has nothing to say about it, at least as a constitutional matter.

As for your misquoting my earlier post, you quoted the entire sentence once, and then when you decided to address what I said, you truncated the sentence to omit the important part.

I appreciate your patience, but I think we're still talking past each other.

Posted by: | Jul 15, 2008 7:55:43 PM

You're resorting to semantics games that I'm not in the mood for. For some reason you think I don't know what I'm talking about--just like S.cotus because he's the last Coca Cola in the desert when it comes to prosecution.

He asked me to find a source and I have been trying to find one for him coming from his preferred perspective. I found one. I don't think that my thinking process or what I say is unique to me. I sometimes say things because I have turned every which way in my head and have analyzed it for hours, days, or weeks. I hyperfocus like that when I'm interested in understanding something. Enough of personal stories. Answer this question, please.

Do you think "the Court have stayed the decision of the sentencing judge in Apprendi if the sentencing judge sentenced Apprendi to even 2 years BELOW the maximum or within the guidelines despite the "fact" responsible for INCREASING the sentence had not been proven to the jury beyond reasonable doubt?"

If you answer yes, you will be minimizing the Court's importance of having a jury be the fact finder. But if your answer is no, then you would have to use my argument.

After you answer that, then read this (http://www.fd.org/pdf_lib/relevant%20conduct.pdf)by Amy Baron-Evans and Jennifer Niles Coffinas. You may find it very interesting. It's Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing . I'll read it while you think of an alternate way to defend your answer. You may find a rebuttal in that pdf file. :-)

Cheers

Posted by: Angelina | Jul 15, 2008 10:05:55 PM

To the poster who made a comment about judges not having to consider acqutted conduct -- and the one who responded that isn't true. A couple of comments - a judge must consider acquitted conduct in calculating the advisory guidelines range. The judge need not, however, consider acquitted conduct in fashioning a sentence when using the 3553(a) factors (i.e., a non-guidelines sentence).

As to Angelina, I would recommend you read Justice Stevens dissent in Watts and Justice Ginsburg's opinion in Cunningham. It seems fairly clear that a judge, when imposing a sentence within the STATUTORY range (usually 0 yrs/mandatory minimum to X no. of years/life), may consider ANY facts. There are certain due process limitations (see McMillian (1986)) but no Sixth Amendment problems. That is not to say after Apprendi, et. al that the court could hold as a matter of 6A law that a judge may not consider acquitted conduct, even within the STATUTORY range. Your citation to Apprendi is inapposite because in that case New Jersey attempted to sentence Apprendi beyond the STATUTORY maximum.

Posted by: opinions opinions | Jul 15, 2008 10:34:58 PM

By Evans, J.D. and Coffinas, J.D.--"Determinate Judicial Factfinding Before Apprendi, Blakely and Booker. The U.S. Sentencing Guidelines created a hybrid system in which facts with both a determinate and mandatory effect were found by a judge, and (according to the Commission) by a preponderance of the evidence. This scheme, and similar state systems,34 operated undisturbed for many years.

The Supreme Court then held, based on extensive examination of the historical underpinnings of the rights to jury trial and to proof beyond a reasonable doubt, that a judge may not find facts by a preponderance of the evidence that expose a defendant to punishment that is not wholly authorized by the jury’s verdict. See Apprendi, 530 U.S. at 482-83 & n.10, 490, 494, 496; Blakely, 542 U.S. at 303-04, 305; Booker, 543 U.S. at 244."

B. Right to Proof Beyond a Reasonable Doubt
"The Sixth Amendment arguments above stand on their own without a Fifth Amendment argument. The courts of appeals have not been receptive to the argument that a higher burden of proof is required, particularly after Booker and its progeny. We include the Fifth Amendment argument here nonetheless.

The requirement of proof beyond a reasonable doubt under the Fifth Amendment Due Process Clause protects against factual error whenever a potential loss of liberty is at stake, regardless of the identity of the factfinder or whether the finding results in “conviction” of a “crime.” In re Winship, 397 U.S. 358, 363-64, 368 (1970) (beyond a reasonable doubt standard required for fact finding by a judge in a juvenile delinquency adjudication). The Supreme Court has long held that facts to which the reasonable doubt standard applies are not just those that go to guilt or innocence, but those that increase punishment. Mullaney v. Wilbur, 421 U.S. 684,697-99 (1975).

The Supreme Court has recently reaffirmed these principles: “Since Winship, we have made clear beyond peradventure that Winship’s due process and associated jury protections extend, to some degree, ‘to determinations that [go] not to a defendant’s guilt or innocence, but simply to the length of his sentence.’ This was a primary lesson of Mullaney.”38 530 U.S. at 484; see also Jones, 526 U.S. at 240-43 & n.6; Cunningham, 127 S. Ct. at 863-64 (referring to independent right to proof beyond a reasonable doubt and tracing origins of recent Sixth Amendment jurisprudence to doctrinal discussions of Winship and Mullaney in Jones).

Though the Supreme Court has considered the Fifth Amendment right to proof beyond a reasonable doubt alongside the Sixth Amendment jury trial right, Apprendi, 530 U.S. at 478, it remains clear that the Fifth Amendment due process right remains distinct, id. at 476-77, and applies equally to judicial factfinding. See Schriro v. Summerlin, 542 U.S. 348, 358 (2004) (despite the absence of jury factfinding, judge’s use of the reasonable doubt standard assured that accuracy was not seriously diminished). Thus, Booker’s resolution of the Sixth Amendment issue did not address what standard of proof a judge must use under the Fifth Amendment to find facts that expose a defendant to additional loss of liberty. Texas v. Cobb, 532 U.S. 162, 169 (2001) (“Constitutional rights are not defined by inferences from opinions which did not address the question at issue.”).

A judicial finding of uncharged or acquitted crimes by a preponderance of the evidence undeniably exposes the defendant to additional loss of liberty. The guideline range is the only § 3553(a) factor with a numerical value. A judge who does not increase that range based on such a finding will be reversed for incorrectly calculating the guideline range. Gall, 128 S. Ct. at 596. Absent that finding, moreover, the sentence may be reversed as unreasonably long. Id. at 602-03 (Scalia, J., concurring). http://www.fd.org/pdf_lib/relevant%20conduct.pdf

I don't mean any disrespect although it may come out as if I do--I just don't get it. But did some of you EARN your J.D. or did you get it based on legacy and/or who you know? Right now it makes 4 people (George, myself, and the two attorneys above) stupid enough to see why acquitted conduct is UNCONSTITUTIONAL. I'm through trying to explain a perspective. I only bend backwards for my students.

Posted by: Angelina | Jul 15, 2008 11:00:21 PM

Opinion, I see you don't dare answer the question directly either. What quacks. lol

Posted by: Angelina | Jul 15, 2008 11:04:02 PM

Angelina,

1. No one's answering your question because it doesn't make any sense. I'm being hypergrammarian here. It's just not a sentence. And I have no idea what "[your] argument" is that one must supposedly use if one must answer your question with a no. If your question is what I think it is (would the Supreme Court have reversed in Apprendi if the decision process the lower court used was the same but the resulting sentence was below the statutory maximum?), then the answer is clearly no. Apprendi holds that the facts admitted or found by the jury set the ceiling, the maximum punishment for the defendant. A judge can sentence below the statutory maximum on the basis of pretty much any fact, including acquitted conduct (as I've tried to explain at least 3 or 4 different ways now). If the sentence a defendant gets is the statutory maximum minus one day, then there is no Apprendi problem. I still don't think you understand this.

2. I understand Evans and Coffinas's argument. I agree with you that it's interesting. As "opinions opinions" has already said, their Fifth Amendment argument does not seem to be foreclosed by the Supreme Court's cases, and it may well be the law someday. It's not the law now, and as far as I can tell from your posts, it's not the argument you've been making.

3. I've been trying to understand your comments and to respond, and I haven't resorted to personal insults. I don't understand where your nastiness is coming from. If you have "students" for whom you bend backwards, I can only hope that you're teaching them yoga and not law.

Posted by: | Jul 15, 2008 11:17:56 PM

You're right, I shouldn't be so genuine. I may have to work with you in court someday, right? Ha! I have a problem with conservatives. Those who are so conservative that they want to conserve even in synaptic plasticity.

I teach my students to beware of thieves, liars, and spinners. I'm sure you know what field that is, no?

"I understand Evans and Coffinas's argument. I agree with you that it's interesting. As "opinions opinions" has already said, their Fifth Amendment argument does not seem to be foreclosed by the Supreme Court's cases, and it may well be the law someday. It's not the law now, and as far as I can tell from your posts, it's not the argument you've been making."

Sure, dear. Sure... http://img120.imageshack.us/my.php?image=rebuttalquoteyn0.jpg

Night night.

Posted by: Angelina | Jul 16, 2008 12:12:43 AM

Angelina, thanks for posting that. Interesting paper. For those who want to check it out...

Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing (pdf)
Amy Baron-Evans
Jennifer Niles Coffin
July 3, 2008

Maybe there is some merit, and some hope, but it might not be a good idea to so conclusively condemn the conservatives. As our host mentions now and then it is often the conservatives of the Court that rely most on the Constitution even if it favors animal criminals. Earl Warren was, I believe, a Republican prosecutor who turned over a new leaf after seeing too many episodes of "Law and Order."

Posted by: George | Jul 16, 2008 2:48:24 AM

George, I didn't mean conservative as in political affiliation. I meant it as someone who is more on the lines of being cautious, preserving... In this case those overly cautious in exploring an idea different from their own.

Have a good day.

Posted by: Angelina | Jul 16, 2008 11:34:00 AM

From the linked paper: "Indeed, the Framers could not have intended to guard against governmental oppression through criminal juries with ultimate power to confirm or reject the truth of every accusation, to acquit even in the face of guilt, and to partially acquit to lessen unduly harsh punishment, only to allow an administrative agency, prosecutor and judge to then nullify the jury’s acquittal." (bold added)

Are the sentencing commission's guidelines specifically excluded from the APA? If not, the most direct attack might be attacking use of acquitted conduct as either an underground regulation or a invalid regulation because it is inconsistent with law. The paper makes the case for whoever wants to pursue it.

Posted by: George | Jul 16, 2008 12:40:57 PM

George, On its face, the USSC is not covered by the APA since it is not within the executive. See 28 USC 995(a) ("There is established as an independent commission in the
judicial branch of the United States a United States Sentencing Commission... ")

Now, as you know 5 USC 551(1)(B) excludes the courts from the definition of agency.

Posted by: S.cotus | Jul 16, 2008 1:21:40 PM

Roadblock:

RULES OF PRACTICE AND PROCEDURE

Part I - SCOPE OF RULES

Rule 1.1 Application and Purpose

Pursuant to 28 U.S.C. 995(a)(1) and other applicable provisions of its organizational statute, the United States Sentencing Commission (Athe Commission@) has established these rules governing its usual operating practices. While the Commission, an agency within the judicial branch of government, is not subject as a general matter to the Administrative Procedures Act and a variety of other statutes typically applicable to executive branch agencies, the Commission nevertheless desires to involve interested members of the public in its work to the maximum extent practicable. Accordingly, these rules are issued for the purpose of more fully informing interested persons of opportunities and procedures for becoming aware of and participating in the public business of the Commission. These rules are not intended to enlarge the rights of any person sentenced under the guidelines promulgated by the Commission or otherwise create any private right of action.

That's scary. The judicial branch can make administrative law and review itself without the checks of the APA? Maybe not.


TITLE 5 > PART I > CHAPTER 5 > SUBCHAPTER II > § 551

§ 551. Definitions

For the purpose of this subchapter—
(1) “agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include—
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United States;
(D) the government of the District of Columbia;

Is the Sentencing Commission a court or is it an agency under the umbrella of the judicial branch? See U.S. v. Alton, 60 F.3d 1065, 1070 (3d Cir. 1995) ( 5K2.0 downward departure not justified to avoid alleged racially disparate impact of crack cocaine penalties when allegations not based on case-specific facts or circumstances), but the Alton court discusses the Administrative Procedures Act and did not rule the Sentencing Commission was exempt as "a court." The Alton court appears to accept that the Administrative Procedures Act applies.

Posted by: George | Jul 16, 2008 1:46:06 PM

S.cotus, you may be right but if so that really confuses the balance of powers. If not under the APA, then the judicial branch makes law and Congress interprets that law. In other words, statutory interpretation is under the preview of Congress and it is up to Congress to overturn the regulations! More importantly, the judicial branch reviews its own laws. No wonder some thought the sentencing commission unconstitutional.

The only means of checks and balances by the people is review under the APA. Do you know of a ruling specifically on that issue that found the APA does not apply? Alton is the only case I can find that discusses it at all in the context of the guidelines. Just because the Commission claims it is exempt that doesn't make it so. Indeed, why didn't the government in Alton make that claim?

Posted by: George | Jul 16, 2008 2:16:17 PM

George, Post-Booker this is a non-issue, since a District Court judge can disagree with any policy behind a guideline, anyway. Secondly, there have been arguments made that the USSG is invalidly constituted. See, e.g. US v. Detwiler, 338 F. Supp. 2d 1166 (D. Or. 2004). Anyway, these are not APA arguments, instead that are more fundamental SOP arguments.

Posted by: S.cotus | Jul 17, 2008 5:45:16 AM

The most accurate summation of the so-called "acquitted conduct" problem was aptly stated in the second comment:

"The problem with the scenario in footnote 6 is the crack law that makes it possible to get 40 years in prison for a $600 half-ounce hand-to-hand crack deal, not with the right of the judge to consider acquitted conduct along with the heap of other things that get tossed into the sentencing calculus."

I doubt anyone is still reading, but I agree with those who say the answer to Angelina's question is "No." I don't recall the specific numbers involved, but Apprendi was the case where the offense of conviction carried a maximum sentence of, say, 15 years, but a judge-made finding that the offense was a "hate crime" turned it into a (again, this may not be the actual number from the case) 25-year sentence.

Apprendi held that the sentence could not go beyond 15 years because that was the maximum sentence supported by the facts essential to the jury's verdict. Thus, the sentence of 25 years based on the judicial factfinding of a hate crime was unconstitutional.

Anegelina's question is, what if the judge had used the same process - found that it was a hate crime - but sentenced to a few years below the maximum - here, 13 years instead of 15. Would the Court have rejected that approach? And the answer is No.

(Of course, the *New Jersey* Supreme Court might have had a problem with that approach, because New Jersey law at the time required a 25-year sentence if the judge found that the offense was a hate crime. But that's beside the point.)

As for acquitted conduct itself, a simple example should suffice to negate the confused ramblings of Angelina. Imagine a defendant on trial for two crimes: a drug charge carrying a maximum punishment of 20 years, and a murder charge carrying a maximum term of life. The jury convicts on the drug charge and acquits on the murder charge. At that point, per Apprendi, the maximum sentence the defendant can receive is 20 years.

Now, the sentencing judge can give him anything from probation to the full 20 year max. If he finds by a preponderance of the evidence that the defendant committed the murder for which he was acquitted (perhaps because, as someone suggested above, he confessed to the murder but the confession was excluded due to a Miranda violation), it is absolutely constitutional, as well as appropriate and good policy, for the judge to take that into account and sentence the defendant to something closer to the 20 years than to mere probation.

This is *not* "sentencing him as if he was guilty of the murder." If he was guilty of the murder, he could be sentenced to *more than 20 years*, up to a life sentence. He is still being sentenced *only* for the drug offense of conviction, but the fact that he more likely than not committed a murder is taken into account in choosing the appropriate sentence for his drug crime.

Finally, as someone else noted above, this is no different from the pre-Guidelines era when district judges had virtually unfettered and unreviewable discretion, and defendants and the public lacked any insight as to the judges' decisions other than whatever they offered from the bench. The Guidelines and subsequent developments brought sentencing decisions out into the open, but to say that directed/cabined discretion is unconstitutional even as undirected/unrestricted discretion pretty clearly was not unconstitutional for decades, is a rather weak argument.

Posted by: Observer | Jul 17, 2008 9:10:24 AM

Observer, good argument. What if?

As for acquitted conduct itself, a simple example should suffice to negate the confused ramblings of Angelina. Imagine a defendant on trial for two crimes: a drug charge carrying a maximum punishment of 20 years, and a murder charge carrying a maximum term of life. The jury convicts on the drug charge and acquits on the murder charge. At that point, per Apprendi, the maximum sentence the defendant can receive is 20 years.

Now, the sentencing judge can give him anything from probation to the full 20 year max. If he finds by a preponderance of the evidence that the defendant committed the murder for which he was acquitted (perhaps because, as someone suggested above, he confessed to the murder but the confession was excluded due to a Miranda violation), it is absolutely constitutional, as well as appropriate and good policy, for the judge to take that into account and sentence the defendant to something closer to the 20 years than to mere probation.

This is *not* "sentencing him as if he was guilty of the murder." If he was guilty of the murder, he could be sentenced to *more than 20 years*, up to a life sentence. He is still being sentenced *only* for the drug offense of conviction, but the fact that he more likely than not committed a murder is taken into account in choosing the appropriate sentence for his drug crime.

What if coupled with the Miranda violation there was also a false confession to the murder? The Innocence Project found this far more common than we would like to think. It is "appropriate and good policy" to curb police interrogations that could lead to false confessions. Under your sentence, 20 years for the drug charge could cancel out the incentive for the police to obey Miranda. In other words, the government is rewarded for disobeying the law.

Granted, in 9 out of 10 cases, or even if it is 99 out of 100, the 20 year sentence will likely be just and a preponderance of the evidence is good enough for a just result, but what of the one percent for which the presumption is wrong and proof beyond a reasonable doubt is the only means of ensuring a just result? Taken to its logical conclusion, your argument in effect supports federalist's belief that executing an innocent person is merely a collateral consequence of a just society. But your argument is a good one and the courts will likely stay supportive of it because it is statistically likely to be just in most cases.

Posted by: George | Jul 17, 2008 11:41:42 AM

George, I see it like this, most prosecutors seek public office and it's really great to screw someone over to get to where you want because you are seen tough on crime. Never mind those who get hurt in the process.

I find it laughable that the comments against Apprendi that were also made by TWO ATTORNEYS go unnoticed because it's more Kosher that way. FULL blown politics. This shows the breed of the individual.

You are absolutely right about the Innocent Project and the number of false convictions based on FALSE eye witness testimony. The same thing happen in regard to rape and the high number of innocent men, mostly Black. http://www.mindfully.org/Reform/2004/Prison-Exonerations-Gross19apr04.htm

While some unethical judge sits on the bench and increase the years of a sentence on an innocent person based on a preponderance of evidence, this individual is fighting for his life by making appeals.But so are the ways of wicked men.

Some people don't give a flying FLIP unless they are the ones standing before that same unethical judge praying to a God they doubt exists for mercy while at the same time praying the prosecutor dies of the worse death possible. But every dog has his day in or out of court.

Dershowitz may have a point with his "Rules of the Justice Game" after all.

Thanks, George.


Good night.

Posted by: Angelina | Jul 18, 2008 12:18:35 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