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July 18, 2008

Two circuits do ho-hum affirmances of acquitted gun sentencing enhancements

Thanks to two readers, I saw on my way out the door this afternoon that both the Fifth Circuit in US v. Casper, No. 06-11381 (5th Cir. July 18, 2008) (available here), and the Tenth Circuit in US v. Salis, No. 06-7111 (10th Cir. July 18, 2008) (available here), today affirmed sentences based on acquitted conduct enhancments.  In both cases, these defendants were acquitted by a jury of a separate 924(c) count of possessing a firearm in relation to a drug trafficking crime, but then received a guideline enhancment based on a judge's finding that they possessed a firearm in relation to a drug trafficking crime.

Regular reader know that circuit affirmances of acquitted conduct enhancements are neither new nor surprising.  Nevertheless, I continue to find it sad and telling that so many appellate courts seems to have no qualms at all about affirming sentencing in these situations.  I wish the Supreme Court would get around to taking up one of these cases so that we could have a more robust public debate over whether acquitted conduct enhancements are really in keep with the spirit and the publi understanding of our constitutional commitment to jury trial rights.

July 18, 2008 at 04:06 PM | Permalink


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I generally love your blog, but I don't get why you continue to argue that the use of acquitted conduct violates the right to a trial by jury. It may be a bad practice from a policy perspective, but it doesn't violate the Constitution.

Consider the following example: D is indicted on counts A and B. He proceeds to a jury trial and is convicted on A but acquitted on B. The statutory maximum for violating A is 30 years, thus under Supreme Court precedent 30 years is the maximum sentence authorized by the jury's verdict. The statutory max for B is 10 years. D's unenhanced guidelines range for violating A is 12-18 years. At sentencing, the judge enhances D's guidelines range to 20-25 years because he is convinced by a preponderance of the evidence that D committed offense B. The judge then sentences D to 23 years, which is still 7 years less than the 30 years authorized by the jury's verdict. Had D been convicted of both A and B, he could have been sentenced to 40 years. So, tell me how it is that D is being sentenced as if the jury convicted him of both crimes? This is especially true given that post-Gall the district judge simply could have varied upwards to 23 years (or even 30 years) by going through the 3553(a) factors in appropriate detail.

It seems to me that at some point, after circuit court after circuit court continue to say the use of acquitted conduct is constitutional, and the Supreme Court continues to deny cert. in the cases, you will have to admit your argument is flawed.

Posted by: Don't get it | Jul 18, 2008 5:14:46 PM

What are the courts supposed to do? The law is settled. If you were a judge on one of these panels, what would you do? Their judges. They should be ho hum about settled legal issues.

Posted by: Not the same | Jul 18, 2008 6:59:59 PM

The statutory arguments that I pressed in the white en banc have barely been considered by circuit courts, and the as applied challenges that Scalia stressed in Rita are open as well.

I can understand that courts want to treat this matter as settled, just like they treated the more basic 6th A question in Booker as settled after Apprendi (and turned out to be WRONG according to the Blakely 5).

The point is not that the defendant is being sentenced as if convicted for both crimes. The point is the judge's authority to completely disrespect the jury verdict.

Imagine if the situation was flipped: jury convicts, but judge decides he is not convinced beyond all doubt of the defendant's guilt so he imposes, in his discretion, statutorily authorized punishment of one day of probation. Would both the commentors here say that such a sentence ought always be upheld as reasonable on appeal because the judge is entitled to take a different view of the evidence and the proof burden and sentence accordingly?

The point is simply whether the jury verdict must be shown respect both legally and functionally. If jury trials were meant to be just for sport and entertainment, mayube not. But if they are to have REAL import, then I do not think the system should so readily treat an acquittal as functionally inconsequential at sentencing.

And let's make this more simple: would anyone be proud and eager to describe how this all works to a jury as it is being selected? If not, should we be so proud as to defend the outcome after the fact?

Posted by: Doug B. | Jul 18, 2008 11:03:43 PM

"The statutory arguments that I pressed in the white en banc have barely been considered by circuit courts, and the as applied challenges that Scalia stressed in Rita are open as well."

But defense counsel aren't making these arguments, so it's not surprising that courts are not sua sponte addressing them.

Posted by: Not the same | Jul 19, 2008 12:06:07 AM

There should also be a disclaimer under each and every statute in the country.

CAUTION: though you may be acquitted of the above charge, a judge has discretion to increase your sentence on other charges though you were acquitted. So don't take this statutory construction thing too literally.

Posted by: George | Jul 19, 2008 12:20:54 AM

Not the same:

"What are the courts supposed to do? The law is settled. If you were a judge on one of these panels, what would you do? Their judges. They should be ho hum about settled legal issues."


Acquitted (and uncharged) conduct has been used in sentencing for as long as I can remember. It became a hot item in the era when the Guidelines were mandatory, but the defense never won a single case about it. In Booker, the Supreme Court had the chance to create a remedy for any perceived unfairness by Blakelyizing the Guidelines. But it explictily elected not to do so in order to preserve a real offense system. That was the wrong remedy in my view, but that's where it stands.

With acquitted conduct having been SOP at sentencing for so long, I cannot believe that the defense bar has missed any even half-way plausible challenge to it. None has worked.

For those who want to place broad discretion in the hands of the sentencing judge, this is another lesson that it doesn't ALWAYS work in the defendant's favor. Between Watts and Booker's explicit rejection of the option of requiring sentencing facts to be proved BRD, I think this issue is dead.

Posted by: Bill Otis | Jul 19, 2008 12:40:26 AM

Again, all commentors are making the standard --- and sensible --- arguments needed to prop up a system that allows a judge to give no real respect to a jury determination at sentencing. And again, nobody is looking past the status quo to ask the hard and important questions about whether courts should continue to embrace this status quo after Blakely and Booker set forth a lot of new principles for modern sentencing decision-making.

Because the status quo is so potent, defense attorneys are not regularly developing all the arguments against acquitted conduct that could/should be made. But courts, especially reviewing courts, can and should take some time to question practices that would seem to undercut many of the diverse principles being stressed even in post-Booker cases (i.e., the importance of the perception of fair sentencing (Gall), the importance of not giving the guidelines presumptive weight at the district court level (Rita), the importance of recognizing some of the old rules may not serve 3553a (Kimbrough), the importance of respecting the Sixth Amendment despite the advisory remedy (Cunningham).)

Here is yet another thought experiment for fans of acquitted conduct sentencing: could anyone strongly assert that the Framers would be proud of these doctrines and/or could anyone explain these doctrines with pride to a high school civics class learning about the meaning and import of the Bill of Rights?

Posted by: Doug B. | Jul 19, 2008 7:47:02 AM

While we are channeling the Framers let's ask them about:

Exclusionary rule;
Miranda; and
The ever increasing body of law on the meaning of the Eighth Amendment (including evolving standards of decency informed by international law).

There are numerous aspects of modern criminal law that would surprise, shock, and even amaze our wise forefathers. The critical question is whether our modern criminal law violates the Constitutional principles they gave us. In many ways this acquitted conduct debate depends on how the question is presented. If the Framers were asked, "do you believe a judge should be able to consider every piece of information available about the defendant and his offense in determining a just sentence?" the answer would plainly be "yes."

P.S. - if we really want to blow the Framers' minds let's tell them about how pornographers have First Amendment protections.

Posted by: Alan O | Jul 19, 2008 10:15:22 AM

Alan O:

Nailed it.

Posted by: Bill Otis | Jul 19, 2008 2:36:47 PM

Alan O didn't nail anything.

Exclusionary rule.

Where in the Constitution do our Founders find the police can break the law during a search? It is ludicrous to argue that our Founders created a right to curb English tyranny but thought it just find if England broke laws while conducting reasonable searches as if illegal searches can be reasonable.


Why do we have Miranda? It is ludicrous to argue that our Founders created a right against self incrimination but thought it just fine if England used torture or the 3rd degree, among other tyrannical procedures, to elicit a confession.

The ever increasing body of law on the meaning of the Eighth Amendment (including evolving standards of decency informed by international law).

You can blame the Founders themselves for thinking, and finding, the SCOTUS was the last word on Constitutional interpretation. Nowhere in the Constitution does it say the SCOTUS is forbidden from using evolving standards of decency and cannot be informed by international law.

Posted by: George | Jul 19, 2008 4:49:37 PM

Alan O. wrote: "While we are channeling the Framers let's ask them about:

Exclusionary rule;
Miranda; and
The ever increasing body of law on the meaning of the Eighth Amendment (including evolving standards of decency informed by international law)."

If our Framers could be channeled, I have little doubt they would provide us a Declaration of Independence, v. 2.0. These are oppressive times, and those were enlightenment figures, after all--radicals of their time. If we are to presume the Founders' presence in our modern era, I feel 100% comfortable saying they would wholeheartedly endorse the exclusionary rule, Miranda, and Eighth Amendment evolving standards of decency, particularly in light of the power of the State today. In fact, they would be death penalty abolitionists. These were revolutionaries, let's not forget. The kind of people that would disparage the Bush neocons with a savagery heretofore unknown.

Posted by: DK | Jul 19, 2008 7:10:22 PM

Maybe the Framers would agree, maybe not. My point is that there are many things about our modern criminal law they wouldn't recognize.

The exclusionary rule did not exist in the case law until 1914 - hardly evidence that the Framers understood it to be part of the Fourth Amendment.

On the issue of Miranda, it wasn't even clear from the decision if it was based on constitutional principles until the Dickerson in 2000. At ratification and for 150 years after the Constitution was understood to allow custodial interrogation without any sort of warning from law enforcement. Miranda may stand on firm ground, but it would not be recognized by the Framers.

(Also, Miranda provides the legal framework governing custodial interrogation. "Torture or the 3rd degree" are prohibited under 14th Amendment due process protections. You are mixing up bodies of law in your response.)

Finally, on the Eighth Amendment. The fact that the text of the Constitution does not prohibit the use of international law and evolving standards of decency is hardly evidence of the soundness of the analysis of the cases coming out of the Supreme Court. George, do you really believe that any jurisprudence that is not expressly forbidden by the text must therefore be considered to have been approved and intended by the Framers?

DK, you may well be right that the Framers would endorse Miranda, the exclusionary rule, and abolition of the death penalty. They were brilliant men and might be persuaded by that viewpoint. Were they elected to Congress today they might vote for laws to require those things. They would be shocked, however, to learn that the Constitution they had written had been interpreted to require them.

Posted by: Alan O | Jul 19, 2008 11:49:53 PM

Alan O:

You might be interested in an article in the July 19 New York Times by Alan Litpak (no friend of the current Justice Department). The article is titled, "U.S. Is Alone in Rejecting All Evidence if Police Err."

The article shows that the USA has the most extreme and rigid stance on the exclusion of evidence of any country in the world. Other countries, such as Canada and Australia, balance the seriousness of the police illegality with the seriousness of the crime to be adjudicated. The court then decides whether it would do more to bring disrespect to the criminal justice system to allow illegally seized evidence to be used, or to allow a guilty (and often dangerous) criminal to walk because the jury didn't get the whole truth.

Particularly relevant to your last post on this was the following quotation in the article from Professor Akhil Amar of Yale: "Supporters of the exclusionary rule cannot point to a single major statement from the Founding — or even the antebellum or Reconstruction eras — supporting Fourth Amendment exclusion of evidence in a criminal trial,” Akhil Reed Amar, a law professor at Yale, wrote in The Harvard Law Review in 1994.

"According to Professor Amar, the framers of the Fourth Amendment assumed that the right it guaranteed would be enforced through civil lawsuits, not exclusion. 'Both before and after the Revolution,' he wrote, 'the civil trespass action tried to a jury flourished as the obvious remedy against haughty customs officers, tax collectors, constables, marshals and the like.'”

Professor Amar is one of the leading, if not the leading, legal historian in the country. (Full disclosure: He's also a freind, and had me over to his house at the Yale reunion a few weeks ago).

A modified and nuanced exclusionary rule along the lines of the Canadian model might be a good idea. The one-size-fits-all version we have now is not.

Finally, I am aware of no evidence that the Framers would endorse abolition of the death penalty. At the time of the founding, it was used for many more crimes and with many fewer safeguards than it is today. Murder and sadism, on the other hand, haven't changed much since 1789.

Posted by: Bill Otis | Jul 20, 2008 8:50:35 AM

The U.S. has little to no internal accountability in its law enforcement institutions, and the judicial branch's development of qualified immunity for law enforcement, combined with the severe income and wealth inequalities in the country that deprive those most vulnerable to law enforcement abuses of access to courts, makes civil enforcement in this country hugely impractical, to say the least. If the U.S. had robust social welfare programs in place--including free access to lawyers for indigent persons--and abolished all forms of immunity, then I wouldn't oppose doing away with the exclusionary rule. Currently, it is the only form of accountability that is practically available to citizens to remedy police abuses.

Also keep in mind, civil law countries--the bulk of Europe and Latin America--do not have adversarial criminal proceedings, so there is less of an us-against-them mentality among law enforcement and less incentive to cheat to obtain evidence and convictions. The exclusionary rule makes less sense in those countries.

Beware those who advocate unconditionally eliminating the exclusionary rule as they simply seek to eliminate accountability from powerful agents of the State.

Posted by: DK | Jul 20, 2008 12:59:51 PM

Prof. Berman's approach fails to appreciate the basic difference between legislating and judging. He may be correct that the public at large likely does not support the use of acquitted conduct, but that is not a question for the courts. It is not the job of an appellate panel to gauge public opinion before determining whether a practice is authorized under the Constitution. If the use of acquitted conduct is so awful and so offensive to the populus, why hasn't Congress intervened at any point in history (throughout which the use of acquitted conduct has been prevalent)? That is the way the Framers envisioned our system working: if you don't like the law then change it through the legislative process. The entire debate could be eliminated by a simple amendment to the SRA that says "sentencing courts may not consider acquitted conduct." Until Congress takes this type of action, the appellate courts should continue to apply the well-established law instead of sitting as three-judge public policy review boards as Prof. Berman seems to suggest.

Posted by: Don't get it | Jul 21, 2008 9:48:07 AM

The problem is that using acquitted conduct in this manner is unconstitutional, and it is therefore most certainly a question for the courts. What the judge has done when she uses acquitted conduct is increase a person's punishment based on facts that have not been found by a jury beyond a reasonable doubt. True, it is being done within the confines of the statutory maximum sentence for a crime that the person was convicted of committing, but it does not change the raw fact that a person is serving a distinct (and identifiable) number of years in prison solely for an offense he was acquitted by a jury of committing. In other words, as a pure matter of fact, but for a judge considering acquitted conduct, the person would serve less time. That it is done under the guise of the sentencing range for another crime is irrelevant when what is occurring in fact (punishment for acquitted conduct) is so plain. It matters not that the punishment time for that acquitted conduct is much less (e.g., three years) than it would have been had the person actually been convicted of the offense (e.g., 20 years), but that he is punished at all for it plainly violates the Fifth and Sixth Amendments.

Posted by: DK | Jul 21, 2008 10:54:32 AM

That no court has found the use of acquitted conduct to be unconstitutional does not prove it's not unconstitutional. It's merely very good evidence.

Watts rejected the most serious challenge to the use of acquitted conduct. There is no indication the Court would vote any differently today than it did in 1997 when Watts was decided.

In addition, the notion that a defendant's sentence cannot be increased (within the statutory range) based on facts that have not been proven BRD is incorrect. No case, including Apprendi, holds any such thing. Indeed, Booker -- which is Apprendi's progeny -- explicitly REJECTED the notion that sentencing facts would have to be proved BRD. A majority of the liberal justice agreed with this holding

Nor, more generally, is there any good policy reason to spurn sentencing factors that have not been proved BRD. If one believes, as I do, that the single most important function of sentencing is to protect the public, then the defendant's attitude ought to be a very, very significant factor in deciding where, within the statutory maximum, his sentence should fall. (Indeed this would be the case even if some other generally accepted view of the purpose of sentencing were to prevail).

It's odd to think of the defendant's attitude as a "fact" at all, much less one that can be "proved" BRD or to any particular standard. But would anyone really say that the same sentence should be given to Defendant A, whose allocution consists of telling the judge that the system was at fault and that the only thing he's going to do differently next time is be better at avoiding capture; and to Defendant B (otherwise essentially identical) who says convincingly that he has re-evaluated where he wants his life to go, that he has already started to get a marketable skill, that he is sincerely sorry for the harm he has caused, and that from now on he's ready to take responsibility for his acts.

Surely a thoughtful judge would (and should) give a lighter sentence to Defendant B and a harsher one to Defendant A, even though the difference in attitude that justifies the disparate treatment has not been "charged" nor proved BRD.

Posted by: Bill Otis | Jul 21, 2008 11:49:39 AM

Alan - re pornography and the founding fathers. Don't be so certain. The founding fathers were hardly prudes - and some people would probably consider some of Ben Franklin's writings pornographic (especially if they were not cleaned up during the Comstock era). In fact, anyone at all familiar with art history would know that sexual expression was really only seriously repressed beginning in the Victorian Era - before that, things relating to sex were much more open than modern people realize. Don't forget that nude art was very common in the founding period - and that the founding fathers were heavily influenced by ancient Greek and Rome (two cultures hardly noted for modesty and prudishness - seriously, have you ever seen some of that Ancient Greek art, especially their vases - some of it is practically hard core pornography) including things like nude statutes.

Your entire point is summed up by saying I disagree with things, thus the founding fathers must be against it. The fact that you would include something as amorphus as pornography (which outside of a limited period of time from about 1870 to about 1960 no one has seriously argued that ordinary pornography or nude art is not protected by the First Amendment) shows how your argument is driven by value judgments, not facts.

Posted by: Zack | Jul 21, 2008 5:21:55 PM

Zack, my point is that there are a lot of things about our modern criminal law that the Framers would find surprising and would not necessarily recognize. If you will examine this thread you will see that I was responding to a comment by our learned blog host that cited what the Framers would be proud of. I don't think it is so easy to know what they would think and there are many areas of the law where advocates of increased constitutional protections for defendants would be sorely disappointed by what the Framers would say. I see his point, but I don't think that it is a useful way to resolve the Constitutional question.

Also, on the general response to the porn comment - you might want to turn the sarcasm filter on your browser to OFF. (You did make a good point, however, and you may well be right about how hot naughty Greek vases were. In fact I checked - www.naughtygreekvases.com is available for registration. It might be a great web business for you. I'm sure it will be very competetive.)

Posted by: Alan O | Jul 21, 2008 8:05:22 PM

"would anyone be proud and eager to describe how this all works to a jury as it is being selected? "

I would. I served on a jury several years back. D was facing three counts of criminal sexual conduct. Among the evidence was a recorded phone conversation in which he all but admitted to two of the incidents. He denied the third. Based in large part on the recorded admissions, we convicted on those two charges, and acquitted on the third.

Now. All twelve of us were convinced that he had done the third as well -- we just weren't convinced BARD, because he denied that one while admitting the others.

But I know I personally would not have been the least bit offended if the judge had relied on that third count to impose a greater sentence. In fact I'd be pretty disappointed if he didn't.

Of course, this was a Virginia state trial, so we the jury actually had the responsibility to make a sentencing recommendation. Our deliberations on the appropriate sentence were a lot more contentious and time-consuming than they were on guilt/innocence. But we all kept in mind and discussed openly the conduct underlying that third count as well as the two we convicted on, and our final sentence recommendation was only a few years shy of the maximum, precisely because we knew we were punishing him for everything he did, and not just what we convicted him of.

Posted by: Don | Jul 22, 2008 2:01:43 PM


A great post from someone with experience that is unusual, if not unique, to this forum.


Posted by: Bill Otis | Jul 22, 2008 10:58:48 PM

Except that what he did violated the accused's constitutional rights just as if he had held the defendant's exercise of his right to remain silent against him. He punished a person for a crime his jury did not find he committed beyond a reasonable doubt. One would think a prosecutor--who has an independent duty to see that justice is done and that the accused's rights are protected--would not openly praise such juror misconduct, but these are new and dangerous times.

Posted by: DK | Jul 23, 2008 7:45:59 AM

The opinion that it is unconstitutional to fix a sentence within the statutory maximum based in part on acquitted conduct is just that -- an opinion. It is, moreover, an opinion not shared by any state court in Virginia, or by the Fourth Circuit, or the Supreme Court. Indeed, Supreme Court precedent is to the contrary. See Watts. See also Booker (explicitly allowing a sentence to be increased within the statutory maximum based on facts not proven BRD).

A juror who does what the Supreme Court allows has committed no misconduct -- something so obvious that it should require no elaboration.

Posted by: Bill Otis | Jul 23, 2008 11:34:15 PM

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