Second Circuit upholds sentencing based on acquitted conduct

The Second Circuit today in US v. Vaughn, No. 04-5136 (2d Cir. Dec. 1, 2005) (available here), rejects a number of constitutional challenges to post-Booker sentencing.  Most disconcerting for those who hoped Blakely might produce a real change in sentencing procedures, the Second Circuit in Vaughn holds that "after Booker, a district court may sentence a defendant taking into account acquitted conduct."

Here's are some key sections of the acquitted conduct discussion (though every part of the Vaughn opinion has passages of interest for those closely following post-Booker sentencing law):

As we have stated recently and reiterate in this opinion, district courts remain statutorily obliged to calculate Guidelines ranges in the same manner as before Booker and to find facts relevant to sentencing by a preponderance of the evidence.  See Garcia, 413 F.3d at 220 n.15; Crosby, 397 F.3d at 112.  Consistent with that obligation, district courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the defendant of that conduct, as long as the judge does not impose (1) a sentence in the belief that the Guidelines are mandatory, (2) a sentence that exceeds the statutory maximum authorized by the jury verdict, or (3) a mandatory minimum sentence under § 841(b) not authorized by the verdict....

On remand, the court is directed to consider all facts relevant to sentencing it determines to have been established by a preponderance of the evidence as it did pre-Booker, even those relating to acquitted conduct, consistent with its statutory obligation to consider the Guidelines. 18 U.S.C. § 3553(a)(4), (5).  We restate, however, that while district courts may take into account acquitted conduct in calculating a defendant's Guidelines range, they are not required to do so.  Rather, district courts should consider the jury's acquittal when assessing the weight and quality of the evidence presented by the prosecution and determining a reasonable sentence.

Long ago I explained in a series of posts (here are here and here) why I think, after Booker, beyond a reasonable doubt (and not preponderance of the evidence) should be the applicable standard of proof for disputed facts at federal sentencing.  Critically, as detailed in those posts, Congress has never expressly provided by statute for preponderance to serve as the proof standard at federal sentencing.  Consequently, it is just flat wrong for the Second Circuit to suggest that district courts are "statutorily obliged ... to find facts relevant to sentencing by a preponderance of the evidence."  Tellingly, the Second Circuit can only cite to its own prior judicial decisions to support this (incorrect) assertion.

Followers of sentencing jurisprudence know how Watts first upheld the constitutionality of reliance on acquitted conduct and also understand why sentence enhancements based on acquitted conduct are still being approved by circuits after Booker.  But is anyone really proud that our Constitution is being interpreted to allow defendants, after they are acquitted by a jury of their peers, to be imprisoned by the state for longer periods of time based on acquitted conduct?  Would the Founders be proud of such an interpretation of their work?