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August 1, 2008

First Circuit Affirms Sentences of 35 and 55 Years Imposed Due to Murder Proven by Preponderance Standard

In United States v. Avilés-Colón, the First Circuit yesterday held that crimes for which a defendant is not convicted – including murder – may be taken into account during sentencing when proven by a preponderance of the evidence.

While the defendants in Avilés-Colón were convicted of conspiracy to distribute and possess controlled substances and possession of firearms in furtherance of the conspiracy, the sentencing court employed a base offense level of forty-three after determining, under a preponderance of the evidence standard, that three murders had been committed in furtherance of the conspiracy.  After considering § 3553, the court ultimately gave each defendant a sentence below the life imprisonment dictated by the guidelines, sentencing one defendant to 660 months in prison and the other to 420 months in prison.

On appeal, one defendant challenged the constitutionality of applying the guidelines’ murder cross-reference when the facts underlying the sentence were proven only by a preponderance of the evidence standard.  The First Circuit swiftly rejected this “often raised argument” in one sentence, noting only that “even the heightened sentence does not rise above the statutory maximum.”

While enhanced sentences based on conduct for which a defendant was neither charged nor convicted are not uncommon, and the law here is entirely settled, this case shows how dramatic the potential effect of this principle can be.

[Note: Although the First Circuit states that the defendants were found guilty only of the two charges discussed above, the district court’s opinion indicates that one of the defendants was in fact convicted of murder.  It is unclear why this is not discussed in the First Circuit’s opinion but is seemingly irrelevant in that the defendant who unquestionably was not convicted of murder was the one who brought the constitutional challenge.] 

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US v. Aviles-Colon, Nos. 05-1384, 05-2039, 05-2040. In this Puerto Rican drug distribution case, the First remands on a Brady v. Maryland, 373 U.S. 83 (1963) issue as to one defendant. [Update: SLP, with guest-bloggers, lives up to its ethical [Read More]

Tracked on Aug 1, 2008 3:30:01 PM

Comments

"[E]nhanced sentences based on conduct for which a defendant was neither charged nor convicted are not uncommon, and the law here is entirely settled..."

Correct. And it's not just Watts and the appellate caselaw after Watts.

It's also Booker. There, the Court chose between two possible remedies to correct the Apprendi/Blakely problem with the guidelines. One was to require the government to prove BRD every fact it sought to have the judge take account of in imposing sentence. The Court explicitly rejected that option -- leaving the burden of proof where it found it -- and chose instead to render the guidelines advisory.

Between Watts and Booker, and the fact that in pre-guidelines practice it was routine for the sentencing court to take into account facts not proven BRD, this is just a dead issue.

If prosecutors attempted to get the death penalty for child rape after Kennedy v. Louisiana, they would be rightly ridiculed for being unable or unwilling to read.

The same is true here. The issue has been decided. Time to move on.

Posted by: Bill Otis | Aug 1, 2008 2:31:00 PM

The Sixth Circuit heard a case awhile ago also involving a very long sentence due in part to applying the guidelines’ murder cross-reference; their treatment was far more thoughtful (see the concurring opinion):

US v Conatser/Marlowe
http://www.ca6.uscourts.gov/opinions.pdf/08a0061p-06.pdf

Posted by: Reader | Aug 1, 2008 2:32:42 PM

Bill said: "If prosecutors attempted to get the death penalty for child rape after Kennedy v. Louisiana, they would be rightly ridiculed for being unable or unwilling to read."

Isn't that exactly what they're trying to do w/the rehearing petition?

Posted by: Anon | Aug 1, 2008 2:49:20 PM

Bill,

I realize your very sure of your own opinion, but didn't Justices Stevens and Thomas both express doubts in Booker about the continued validity of Watts? Also, wasn't Watts decided under the Double Jepardy Clause, rather than the Confrontation Clause?

Posted by: anon | Aug 1, 2008 3:50:35 PM

Contrary to the view of the blogger and Mr. Otis, the law is not "entirely settled" at least with respect to whether a uncharged conduct may be proved only by a "preponderance of the evidence." See U.S. v. Mezas de Jesus 217 F.3d 638 (9th Cir. 2000)(disproportionate effect on sentence that defendant would otherwise have received for his possessory firearms offense, when district court found that offense was committed during uncharged kidnapping and imposed nine-level enhancement in defendant's base offense level to increase a relatively short sentence of less than two years to one of nearly five years, necessitated that district court find that kidnapping was established, not just by preponderance, but by clear and convincing evidence); U.S. v. Jordan, 256 F.3d 922 (9th Cir. 2001)(due process required that aggregated nine-level sentence enhancements for firearm possession and abduction to facilitate escape be proven by clear and convincing evidence; (2) it was plain error for sentencing court to utilize preponderance of the evidence standard)

Posted by: Michael R. Levine | Aug 1, 2008 4:17:06 PM

Anon:

I would have thought it obvious that trying to change the outcome of a Supreme Court case by filing a timely rehearing petition is a rather different enterprise from trying to change it years later by urging lower courts to simply ignore it.

Posted by: Bill Otis | Aug 1, 2008 4:43:40 PM

anon:

"I realize your very sure of your own opinion, but didn't Justices Stevens and Thomas both express doubts in Booker about the continued validity of Watts?"

I haven't read Booker recently enough to remember, but assuming you're correct, and assuming further that "expressing doubts" is the same as stating that Watts is in their view no longer to be followed, that makes the count 7-2.

Maybe prosecutors should continue to challenge Miranda, since there were twice as many votes against the outcome there (not to mention two dissenting justices in Dickerson).

"Also, wasn't Watts decided under the Double Jepardy Clause, rather than the Confrontation Clause?"

In the more than ten years since Watts, the use of acquitted conduct has been challenged on every imaginable ground, and no appellate court has bought any of them.

Federal courts sentenced on a real offense system before the guidelines, during the guidelines, and now in the post-Booker era of pretend (i.e., advisory) guidelines.

Time to move on.

Posted by: Bill Otis | Aug 1, 2008 4:56:35 PM

Asking as a non-attorney. If the Government is being given this wide latitude with both uncharged and acquitted conduct, why would they ever even consider charging the more serious crimes. It seems as if they would simply charge what they consider "easy to prove" offenses and then come in later, without the obstacle of a jury, and heap on additional charges that yield additional time. It seems to me that it would make more sense that the Gov't be forced to prove the more serious offense at trial and then be allowed to add the "smaller" offenses after. Going in with a drug case and coming out sentenced for Murder seems wildly unfair. How can you even effectively defend yourself from that if you are not charged with it. Please excuse my ignorance on this subject as I am still a student, only considering law when I graduate in a couple of years.

Posted by: Potential Law student | Aug 1, 2008 5:05:08 PM

Mr. Levine:

I have not read the two cases you mention, nor do I know whether they continue to be followed today. But for however that may be, two outliers in an ocean of caselaw approving the use of acquitted or uncharged conduct do not in my view change the fact that the law permitting its use can fairly be described as settled.

Tending to bolster that view are the facts (1) that, as described, the cases do not even purport to hold that acquitted conduct must be proved BRD (which is the principal complaint); and (2) the more recent of the two cases (Jordan) was decided seven years ago. If there is no other case in the Circuit applying it, and no other Circuit adopting it, one would have to view it, not merely as an outlier, but an orphaned outlier.

Posted by: Bill Otis | Aug 1, 2008 5:10:28 PM

"Going in with a drug case and coming out sentenced for Murder seems wildly unfair."

Welcome to the legal profession.

Posted by: Daniel | Aug 1, 2008 7:04:17 PM

Watts may have settled it, but it's built on sophistry. Witness:

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

The Court of Appeals' position ... seems to be based on erroneous views of our double jeopardy jurisprudence. The Court of Appeals asserted that, when a sentencing court considers facts underlying a charge on which the jury returned a verdict of not guilty, the defendant "'suffer[s] punishment for a criminal charge for which he or she was acquitted.'" Watts, 67 F. 3d. at 797 (quoting Brady, 928 F. 2d, at 851). As we explained in Witte, however, sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. 515 U. S., at ___ (slip op., at 13). In Witte, we held that a sentencing court could, consistent with the Double Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence on marijuana charges that was within the statutory range, without precluding the defendant's subsequent prosecution for the cocaine offense. We concluded that "consideration of information about the defendant's character and conduct at sentencing does not result in `punishment' for any offense other than the one of which the defendant was convicted." Id., at ___ (slip op., at 12). Rather, the defendant is "punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . . ." Id., at ___ (slip op., at 13); see also Nichols, 511 U.S., at 747.

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

That is semantic nonsense that ignores what is happening in fact. If "the manner in which he committed the crime of conviction" itself constitutes a separate crime for which he was acquitted, and if a court's consideration of that conduct is a but for cause of a discrete, measurable, and identifiable increase in punishment, then he most certainly does "suffer punishment for a criminal charge for which he ... was acquitted." While the lower standard of proof may or may not avoid double jeopardy problems, it does not avoid the Sixth Amendment right to have a jury find all elements of an offense proved beyond a reasonable doubt. That the resultant punishment is still within the guidelines for the crime of conviction does not make this problem go away. No person can with a straight face say that people are not being punished for crimes that the government has not proved beyond a reasonable doubt.

Posted by: DK | Aug 1, 2008 8:43:52 PM

We want politics and low. What as we are peoples.
-----------
Chandani
srilanka latest news

Posted by: chandani | Aug 2, 2008 2:06:06 AM

Plessy v. Ferguson was an issue that had "been decided." Guess it's too bad that everyone didn't just decide it was "time to move on."

Posted by: | Aug 2, 2008 7:16:57 AM

DK:

"No person can with a straight face say that people are not being punished for crimes that the government has not proved beyond a reasonable doubt."

The "no person" list would appear to include Rehnquist, O'Connor, Scalia, Thomas, Breyer, Souter and Ruth Bader Ginsburg.

It is true that Kennedy dissented. He did so, however, on the grounds that the case should have been fully briefed and argued, not on the grounds that the outcome was necessarily, or even probably, incorrect.

It is also true that Stevens dissented on the merits. But this hardly cuts in favor of those who wish to keep raising this issue: The fact that NO OTHER JUSTICE joined his opinion demonstrates, obviously, that there is nowhere to go with this.

Posted by: Bill Otis | Aug 2, 2008 2:45:53 PM

Aug 2, 2008 7:16:57 AM:

May I assume you view Furman v. Georgia the same way?

Posted by: Bill Otis | Aug 2, 2008 5:18:51 PM

Bill wrote: "The 'no person' list would appear to include Rehnquist, O'Connor, Scalia, Thomas, Breyer, Souter and Ruth Bader Ginsburg."

None of them said that in Watts.

Posted by: DK | Aug 3, 2008 1:57:19 PM

I don't think this has been settled.

Isn't it law that a judge, by preponderance of evidence, can find a defendant's guilt based on acquitted conducted only if that conduct is part of an element of a crime?

If acquitted conduct can be considered OUTSIDE of specific elements of a crime for which the defendant is currently being sentenced, and that conduct is one that belongs to a different crime category with its own separate elements, wouldn't the judge be violating the defendants due process rights-trial by jury, proof beyond reasonable doubt?

Based on acquitted conduct, how much freedom (months/years) must a defendant face, other than being sentenced BEYOND the statutory maximum, before the Court decides his due process rights were violated?

Am I too soft or is it that due process has nothing to do with meting justice?

Posted by: Ange | Aug 4, 2008 10:51:55 AM

I found the answer to my first question so skip that.


Posted by: Ange | Aug 4, 2008 11:03:31 AM

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