Seventh Circuit says reliance on acquitted conduct still okay after Booker

The Seventh Circuit today in US v. Price, No. 03-3780 (7th Cir. Aug 15, 2005) (accessible here), at the end of a long opinion, had occasion to speak briefly to the consideration of so-called acquitted conduct at sentencing — that is, the continued validity of Watts — after Blakely and Booker.  Though a few bold district judges such as Judge Gertner in Pimental and Judge Marbley in Coleman have, in essence, declared Watts abrogated by Blakely and Booker, the few circuits to address this issue have so far said Watts somehow remains alive and well .  Here is the Seventh Circuit's cursory take on this issue (with some cites omitted):

The district court found for sentencing purposes that Mr. Davison was a member of the conspiracy despite the fact that the jury acquitted him on the conspiracy charge.  In United States v. Watts, 519 U.S. 148 (1997), the Court held that a court is permitted to consider a broad range of information for sentencing purposes, including conduct related to charges of which the defendant was acquitted. The Court based its holding, in part, on 18 U.S.C. § 3661 ... and also on the notion that "different standards of proof . . . govern at trial and sentencing," id. at 155.

We join all the other courts that have confronted the issue in holding that the Supreme Court's holding in Watts remains the law after Booker.

Notably, the facts in Price provide a remarkable and stark example of the potential consequences of sentencing consideration of acquitted conduct under the guidelines.  The facts in Price reveal that, for one defendant, the consideration of acquitted conduct added more than 25 years to his guideline sentence!  Here's how:

The jury's verdict against Mr. Davison on the two distribution charges required a base offense level of 18 ... which would have carried a sentence of 27 to 33 months.  However, despite the fact that the jury had acquitted Mr. Davison on the conspiracy charge, the district court at sentencing found by a preponderance of the evidence that Mr. Davison had been a member of the conspiracy and that more than 1.5 kilograms of cocaine base were attributable to him as a result.  These findings elevated Mr. Davison's combined offense level to 38. The district court also applied a two-level enhancement to Mr. Davison's sentence for possession of a dangerous weapon in connection with a drug offense. The final offense level of 40, taken together with Mr. Davison's criminal history category, yielded a sentencing range of 292 to 365 months. The district court sentenced Mr. Davison to 360 months' imprisonment, to consist of two 180-month terms of imprisonment running consecutively.

Because defendant Davison's sentence was subject to a limited plain error remand, I am not sure Price serves as a viable case for testing in the Supreme Court whether Watts truly remains good law.  But whenever I go back and read Blakely and its liberty-promoting principles, the tension between Watts and the principles of Blakely are palpable.  More generally, I have a hard time understanding how the Constitution can and should still be understood to allow a defendant to receive 25 additional years in prison on the basis of a charge for which he has been acquitted.