July 8, 2008
Deconstructing the federal relevant conduct guidelines
As first noted here, the federal defenders are hard at work on an important post-Gall/Kimbrough project entitled "Deconstructing the Guidelines." The first paper in the series addressed the child porn guidelines (discussed here); the second paper examined the career offender guidelines (discussed here). The latest extraordinary paper in this extraordinary series is titled "Deconstructing the Relevant Conduct Guideline: Challenging the Use of Uncharged and Acquitted Offenses in Sentencing," and it is available at this link. Here are excerpts from start of this paper:
Under certain portions of the “relevant conduct” guideline and its commentary, judges are required to calculate the guideline range based not only on the crime of conviction, but on separate crimes, comprised of their own elements, of which the defendant was acquitted, with which the defendant was never charged, or which were dismissed. The Commission advises judges to find these separate crimes by a preponderance of the “information,” without regard to its admissibility under the rules of evidence, if there is sufficient indicia of reliability to support its “probable accuracy.” The guideline range is then increased by the same number of months or years as if the defendant had been charged by indictment and convicted by a jury on proof beyond a reasonable doubt, limited only by the statutory maximum for the offense of conviction. These provisions were a radical departure from past practice in the federal courts and national experience in the states, were not authorized by Congress, and were adopted without empirical support. They have been subject to enduring criticism and calls for reform since their inception, to no avail....
Part I of this paper recounts the history of the guideline provisions requiring district courts to calculate the guideline range based on uncharged, dismissed and acquitted crimes. It demonstrates that these provisions were not authorized by the SRA or reviewed by Congress, and were adopted without empirical testing or support. Part II demonstrates that these provisions were not based on past practice, have not been revised in light of feedback or research, have failed to achieve their untested theoretical goals, and instead transfer sentencing power to prosecutors, create hidden and unwarranted disparities, and promote disrespect for the law. Part III discusses open constitutional challenges to these provisions.
July 8, 2008 at 09:30 AM | Permalink
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Tracked on Aug 1, 2008 8:47:00 AM
This "deconstruction" argument lacks merit. There is no requirement that courts make findings based on "relevant conduct". Each court makes an affirmative decision as to the inclusion of behavior beyond the scope of the count of conviction in the calculation of the guidelines. Many courts have and will continue to decline such findings if the preponderance satandard has not been met. Further, the decision to use an offense of conviction or a real offense system was one of the major decisions to be made by the Commission and was thoroughly vetted. Finally, unlike the crack, child pornography or the Career Offender guidelines, this was not Congessionally directed and still has the full support of the Commission to my knowledge.
Posted by: mjs | Jul 8, 2008 1:34:05 PM
It would be news to many sitting in prison and many lawyers who have litigated the issue to find that courts were not required to include acquitted and uncharged and dismissed separate crimes in calculating the guideline range. But that is not what you are saying. You are saying that courts can "decline" to make such a finding if they do not make such a finding. Just like any other piece of a "correctly calculated" guideline range.
You are correct that it was entirely the Commission's idea, and a bad one as it has turned out. The Commission itself has found that the policy is problematic, as recounted in the paper.
Your point is unsupported.
Posted by: abe | Jul 8, 2008 3:23:10 PM
Although ABE's interpretation is probably right, just in case MJS is actually expressing the belief that courts are not required to calculate the guideline range based on relevant conduct, the following cases make clear that courts are procedurally requied to do so, even in under the now-advisory system:
United States v. Ibanga, 2008 WL 895660 (4th Cir. Apr. 1, 2008) (holding that, under Gall, “the court committed significant procedural error by categorically excluding acquitted conduct from the information that it could consider in the sentencing process); see also United States v. Vaughn, 430 F.3d 518, 526-27 (2d Cir. 2005) (“[D]istrict courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence” and “consistent with that obligation, district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct”; remanding to district court with directions to “consider all facts relevant to sentencing it determines to have been established by a preponderance of the evidence as it did pre-Booker, even those relating to acquitted conduct, consistent with its statutory obligation to consider the Guidelines”); United States v. Zuni, 506 F. Supp. 2d 663, 681 (D.N.M. 2007) (even though the jury acquitted the defendant of sexual assault, determining that under Tenth Circuit precedent and Watts, “[the court] is obligated to consider all the evidence in the record and determine by a preponderance of the evidence whether sexual assault was committed in this case”).
Posted by: jnc | Jul 8, 2008 3:56:48 PM
It is correct to say that a Court can not categorically exclude acquitted conduct. However, after a hearing of the evidence, a finding could be made that the preponderance standard was not met to the Court's satisfaction. If not appealed by the Government, this decision never sees the light of day.
Courts are required to "consider" certain categories of offense details beyond the offense of conviction as relevant conduct. However, the final decision rests within their discretion.
Posted by: mjs | Jul 8, 2008 4:59:28 PM
Maybe we are splitting hairs, but, to clarify, the courts are required (at least according to the commentary to 1B1.3) to use uncharged or acquitted crimes (if found by a preponderance of the probably accurate hearsay) in "calculating" the guideline range. But, for any or all of the reasons outlined in the paper, the courts can and should reject or discount such findings in determining the final sentence.
Posted by: abe | Jul 8, 2008 6:15:20 PM
This article's Sixth Amendment arguments miss the discussion in Justice Ginsburg's Cunningaham opinion that were the guidelines no longer mandatory, judicial fact-finding would not be problematic. What the authors appear to be arguing is that because Gall requires a proper calculation of the proper Guidelines' range, which may include the use of "acquitted conduct", and then typically sentence within that range, district court's are effectively violating a defendant's sixth amendment jury right as defined by Apprendi and booker. this argument would be more persuasive if the guidelines remained mandatory. The question - which is not addressed by the paper - is whether district court judges could impose the same sentence, absence the Guidelines, which includes considerations of acquitted conduct? I have not seen anyone introduce any historical evidence that the Sixth Amendment categorically bars the consideration of acquitted conduct whether within a discretionary or non-discretionary system.
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Posted by: MAGGIE | Aug 10, 2009 8:11:33 PM
It demonstrates that these provisions were not authorized by the SRA or reviewed by Congress, and were adopted without empirical testing or support
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