Further reflections on burdens of proof and acquitted conduct

Though many interesting stories appear in yesterday's many circuit Booker rulings reviewed in this post, the Second Circuit's decision in US v. Gonzales, No. 04-1956 (2d Cir. May 3, 2005) (available here) has me again reflecting on burdens of proof and acquitted conduct in post-Booker sentencings.  Though I have written a lot on this topic already, as detailed in the posts linked below and in my February USSC testimony, Gonzales (as well as the House Booker fix bill) provide more grist for the mill.

Gonzales involves a defendant who claims she was coerced into a drug conspiracy (although the district court precluded a jury instruction on the defense of coercion or duress).  Though convicted at trial, the "jury answered two verdict questions finding that, contrary to the government’s allegation, Gonzalez's offense did not involve five kilograms or more, or 500 grams or more, of" cocaine.  Nevertheless, at sentence (which took place before Blakely, I believe) the "government asserted that despite the jury's finding, the district court could independently find by a preponderance of the evidence that Gonzalez's offense involved at least five kilograms of cocaine."

Interestingly, District Judge Duffy at sentencing "stated that the two kilograms of cocaine that Gonzalez's husband possessed when he was arrested were foreseeable to Gonzalez and could theoretically form the basis of its sentencing calculation.  But, refusing to vitiate the jury's drug weight finding, the district court determined that Gonzalez’s base offense level should be 24 — corresponding to a drug weight of at least 400 grams but less than 500 grams of cocaine."  Based on this determination, the applicable guidelines range was 51 to 63 months, and Judge Duffy imposed a sentence of 63 months.

Among other arguments on appeal, Gonzales argued that the rule of lenity required an even lower offense level calculation.  The Second Circuit rejected this claim, stating "the rule of lenity is not applicable to a district court's fact-finding role at sentencing."  In the course of this ruling, the Second Circuit, somewhat unnecessarily, blessed the civil standard of proof at sentencing by stating district courts have "authority — that endures post-Booker — to resolve disputed facts by a preponderance of the evidence when arriving at a Guidelines sentence."  But then, without directly confronting the fact that Judge Duffy opted to disregard his own factual findings about drug quantities attributable to Gonzales, the Second Circuit "affirm[ed] the district court's initial Guidelines determination."

In other words, though the Gonzales decision directly blesses a judge's authority to apply a preponderance standard of proof at sentencing, it also indirectly blesses Judge Duffy's decision to refuse to consider acquitted conduct and thereby give effect to a beyond a reasonable doubt standard.  (Judge Duffy's decision calls to mind Judge Gertner's recent work in Pimental, in which she rejected application of preponderance fact-finding to allow consideration of acquitted conduct.) 

As I explain in posts linked below, applying the civil law preponderance standard to facts which increase criminal penalties has never seemed quite right to me as a matter of policy.  Interestingly, the House Booker fix bill (HR 1528) actually addresses burdens of proof in one section.  However, revealing HR 1528's disturbingly imbalanced nature, the bill requires judges to justify a decision to depart below the guidelines by clear and convincing evidence, but it says nothing about applying a heightened proof standard to decisions which increase a guidelines sentence.

• More about beyond a reasonable doubt at sentencing
• Requiring proof beyond a reasonable doubt in any legislative fix
• Burdens of proof and a new due process of sentencing
• Judge Gertner speaks on acquitted conduct