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July 5, 2011

Seventh Circuit rejects all attacks on acquitted conduct sentencing enhancements

Though not breaking new ground, a lengthy ruling today from the Seventh Circuit in US v. Waltower, No. 09-3967 (7th Cir. July 5, 2011) (available here), thoroughly reviews why federal defendants continue to be sentenced by federal judges for conduct relating to federal criminal charges on which they have been acquitted by a federal jury. Here is the start of the opinion along with an excerpt of note from Waltower:

Stephen Waltower was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He was acquitted of several other drug-related offenses, but the district court took the underlying (acquitted) conduct into consideration at sentencing. The result was a statutory maximum sentence of 120 months. On appeal, Waltower challenges the use of the acquitted conduct at sentencing. He also maintains that his lawyer should have argued that certain post-arrest, self-incriminating statements he made were solicited in violation of Miranda v. Arizona, 384 U.S. 436 (1966).  We affirm ....

In rejecting Waltower’s constitutional argument, we blaze no new trails.  Every circuit to have considered the question post-Booker, including ours, has held that acquitted conduct may be used in calculating a guidelines sentence, so long as proved by a preponderance standard....  

Although we, like the D.C. Circuit, understand why defendants consider it unfair to take acquitted conduct into account at sentencing, Settles, 530 F.3d at 924, their use does not violate the United States Constitution under existing doctrine. Waltower enjoys no more success with his less ambitious arguments that the use of acquitted conduct in this case was contrary to the guidelines or otherwise unreasonable. Recall, the district court determined that Waltower’s adjusted base-offense level was 30 instead of 26, because the gun conduct and the drug conduct were part of the same relevant offense conduct for sentencing purposes.

July 5, 2011 at 05:21 PM | Permalink

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Can someone give me the brief, non-lawyer reason that acquitted conduct can be used for sentencing?

Posted by: IANAL | Jul 5, 2011 8:36:42 PM

IANAL: As the Casey Anthony verdict (or the OJ verdict) shows, criminal charges have to be proven beyond a reasonable doubt. Civil charges and, relevant here, "sentencing factors" which influence the sentence imposed but not the crime the person was convicted of, need only be proven by a "preponderance of the evidence" -- something like more likely than not or greater than 50%.

What you're convicted of sets the maximum and minimum penalties (jail, life in prison, 0 to 30, death penalty, etc) but sentencing factors give the judge some discretion within that range. Thus, if you're convicted of burglary your sentence may range from 0 to 30, but if -- to make up an example -- the judge found that you acted with, say, racial animus, the sentencing laws might require you to get the statutory maximum.

Acquitted conduct is just an extension of this principle: You were not convicted of it (indeed you were charged but found innocent), but a judge, during your sentencing hearing, looks at the evidence and thinks it more likely than not that you did it so uses it as a "factor" in determining your sentence.

Posted by: MJG | Jul 5, 2011 9:04:08 PM

Because a sound sentence should be based in large part on ALL of what the defendant did. (In slightly different contexts, this is something the defense bar insists upon). That a defendant gets acquitted of X does not mean that he did not, in fact, do X. See, e.g., OJ.

Posted by: Bill Otis | Jul 5, 2011 9:04:48 PM

Bill:

You are a real work of art. You said your students love you. I say, stop government financing of any current colleges. Oh wait, sleeping dogs lie together.

MikeinCT has no trouble with lies by the gubermint and you support him. No reasonable argument is a reason not to treat "ALL" poor SOB's as cruelly as you can get away with.

I know you sleep well at night. That is why the US is bankrupt.

I hope your Students read this blog to know that you are not entirely rational.

Be afraid, be very afraid! For Liberty and Freedom.

I am not afraid of "real" criminals. I can provide for my own defense, unlike the poor citizenry in the inner-city and certain government projects. But they are never the focus of government security,

But we (the government) can crucify anybody, (where are you DickheadinCT), when the gubermint is permitted to make any statements they wish to "the press" and provide mistruths to the public as they wish.

Posted by: albeed | Jul 5, 2011 11:31:33 PM

horse crap! by using AQUITTED conduct in any sentence any judge that does it. is a CRIMINAL TRAITOR to the united states constitution!

last time i looked under our law AQUITTED legally means NOT GUILTY....ie INNOCENT!

to use that same charge they have been AQUITTED of is a case of TREASON!

Posted by: rodsmith | Jul 6, 2011 1:58:55 AM

The federal judiciary has grown all but worthless as a protector of citizens set upon by the mob-directed branches.

Acquitted-conduct punishment is merely one of numerous advances toward a heads-government-wins-tails-defendants-lose system.

I used to mock fellow citizens who perceive the government as a malicious, alien occupier of a nation struggling to live up to its slogans. Now I'm one of them.

Posted by: John K | Jul 6, 2011 8:49:57 AM

rodsmith and John K --

Please take note of this line in Doug's excerpt from the opinion: "Every circuit to have considered the question post-Booker, including ours, has held that acquitted conduct may be used in calculating a guidelines sentence, so long as proved by a preponderance standard...."

Guys, with all respect, the US government is not a big, fascist conspiracy with, you know, a hidden cache of alien bodies at Area 51.

When the courts UNANIMOUSLY agree, over the course of years, that it's proper to use acquitted conduct, it's just so much hyperventilating to go into orbit about it. ALL these judges, from differing politics, ideologies, temperament and experience reach the same conclusion -- but they're wrong and you're right??? C'mon.

I agree that it would be entirely wrong to sentence people of the basis of stuff they didn't do. But that they got acquitted of X DOES NOT MEAN THEY DIDN'T DO X. With the exception of the narrow class of cases covered by Blakely, sentencing facts do not have to be found BRD. Now as unifromly in the past, they can be found by a preponderance, meaning that an acquittal (failure to find BRD) means zip.

Posted by: Bill Otis | Jul 6, 2011 11:34:24 AM

Seems to me that the real beef here is that the standard of proof at sentencing is a preponderance of the evidence. Otherwise, this wouldn't be an issue. If the standard at sentencing was beyond a reasonable doubt, then a jury acquittal would control at sentencing. But if you accept the differences in standards, then using acquitted conduct at sentencing makes sense.

Posted by: domino | Jul 6, 2011 8:57:35 PM

hmm

"When the courts UNANIMOUSLY agree, over the course of years, that it's proper to use acquitted conduct, it's just so much hyperventilating to go into orbit about it. ALL these judges, from differing politics, ideologies, temperament and experience reach the same conclusion -- but they're wrong and you're right??? C'mon."


hmm guess that means slavery is still legal. since for almsot 150 of those years those same judges said IT WAS LEGAL! guess this is just another of the NUMEROUS decision lately that has proved the elite of this country are somewhere in the TWILIGHT ZONE!

"I agree that it would be entirely wrong to sentence people of the basis of stuff they didn't do. But that they got acquitted of X DOES NOT MEAN THEY DIDN'T DO X."

Actualy under our constution it does! the state is required to get a conviction BRD! if they FAIL you get a NOT GUILTY verdic....I.E. INNOCENT! if that was not the case then i'm pretty sure that the individuals WHO WROTE that document would have added an INNOCENT option in the verdict system at the beginning. but like me they probably figured that reasoning was a NO-BRAINER! to anyone who had one!

Posted by: rodsmith | Jul 6, 2011 11:00:17 PM

Rod sums it up pretty well.

Until juries are required to declare the reasoning behind verdicts, who's to say whether any given aquittal is a casualty of the BRD standard...or if it was simply a weak case by any standard? Bill seems comfortable having the (more likely than not) conservative-Republican, calloused-on-crime, "we-affirm" federal judge make that call. I'm not.

The system's gone full-on Roy Bean in the decades since Nixon. You're just too deep in the legalistic/ideological/authoritarian thickets to see it, Bill.

Besides that, no intensive research is required to find any number of smart, sensible folks who believe acquittal still means what they always thought it means...hyper-legal fabrications and rationalizations from the federal courts notwithstanding.

Posted by: John K | Jul 7, 2011 8:57:40 AM

I (a law-and-economics economist professor) was outraged at first, too, till I thought this out carefully. There is a crucial distinction here, which I hope the courts understand (and they probably do):

1. GOOD SENTENCING. The judge takes into account various relevant facts about the defendant which were never decided by a jury or judge by a preponderance of evidence standard. These might include his age, previous good deeds, and previous misbehavior, all by preponderance of evidence. Whether a jury found there wasn't proof beyond a reasonable doubt that the person was a drug-dealer isn't relevant to that; if a civil jury had found that the person was a drug-dealer by preponderance of the evidence, that would be relevant. So the 7th Circuit is correct in Waltower.

2. BAD SENTENCING. The judge takes into account jury mistakes and irrelevant facts about the defendant. A civil jury acquitted the defendant of drug dealing by preponderance of evidence, but he judge thinks the jury was wrong. A criminal jury acquitted OJ Simpson of murder many years ago, but, hypothetically, OJ comes up on gun charges now and the judge leaps at this chance to rectify the earlier acquittal by giving him the maximum gun offense sentence. Casey Anthony is acquitted of murder but convicted of lying to police, so since the judge thinks the jury should have convicted her of murder by the beyond a reasonable doubt standard he gives here the maximum lying penalty.

Posted by: Eric Rasmusen | Jul 7, 2011 9:59:42 AM

A separate point: I wouldn't take the unanimous opinion of judges as a reliable sign that they are right. Illustration: I've participated in an amicus brief in Barnes v. Indiana. In that case, the question is "Should a citizen who pushes a policeman who is unlawfully trying to enter the citizen's home be guilty of battery?" See http://rasmusen.org/special/barnes/ for details. I have found that the vast majority of law professors thinks the citizen should be guilty, and the unanimous opinion of non-lawyers (except for police) is that it would be outrageous to imprison the citizen. Similarly, it seems a large majority of lawyers think the death penalty is unjust whereas a large majority of everyone else thinks it is just. [by an economics professor]

Posted by: Eric Rasmusen | Jul 7, 2011 10:06:09 AM

"the unanimous opinion of non-lawyers (except for police) is that it would be outrageous to imprison the citizen."

I'm with them as far as i'm concerned if your breaking the law when you enter my property your a CROOK i dont' care what costume you have on at the time. In a cops case an ARMED CROOK at that point under law enforcments rules with dealing with CITIZENS that means they have the legal right to KILL you without notice so since they get their power from us. I RESERVE THAT SAME RIGHT TO ME to use against them when they break the law!

Posted by: rodsmith | Jul 7, 2011 3:53:46 PM

"I agree that it would be entirely wrong to sentence people of the basis of stuff they didn't do."

Well that is the crux. The factual determination that the defendant did the stuff in question is what is supposed to legally justify a marginally higher criminal sentence as substantively reasonable. But that determination isn't made by a jury beyond a reasonable doubt (and indeed might run counter to what the jury actually believed); instead, it's made by a judge, and on a lower standard of proof that wouldn't on its own constitutionally permit the balance of criminal punishment.

Other than administrative expediency, it's hard to see how this practice passes constitutional muster after Apprendi. See Rita v. United States, 551 U.S. 338, 372 (2007) (Scalia, J., concurring) ("[F]or every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment.”). The fact that courts have shrugged off the obvious constitutional problem isn't normatively compelling.

Posted by: Michael Drake | Jul 7, 2011 4:21:40 PM

(Er, the "administrative expedience" point was originally attached to a now-deleted sentence, and obviously doesn't have anything to do with constitutionality.)

Posted by: Michael Drake | Jul 7, 2011 4:29:45 PM

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