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February 10, 2006

Ninth Circuit (en banc) approves acquitted conduct enhancement

The Ninth Circuit today in US v. Lynch, No. 02-30216 (9th Cir.  Feb. 10, 2005) (available here), at the end of a long en banc opinion focused on jurisdictional issues, provides a disconcertingly rote endorsement of the use of acquitted conduct to support a sentence enhancement.  Here is the full text of the en banc court's per curiam sentencing discussion in Lynch:

The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I). In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro.  However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).

The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge.  United States v. Watts, 519 U.S. 148, 157 (1997).  In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.

In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999).  Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied.  There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding.  There was no error in the court's use of the first degree murder cross reference.

I describe this discussion as "disconcertingly rote" because I am left to wonder whether or how Blakely and Booker were considered by the Ninth Circuit.  As detailed here and here and here, more than a few district judges have held that Blakely and Booker cast great doubt on Watts and the use of acquitted conduct at sentencing.  Even if the Ninth Circuit does not find these arguments compelling, it ought to have discussed Blakely and Booker before endorsing judicial sentencing enhancements based on offense facts that have been affirmatively rejected by a jury (albeit with a higher standard of proof).

February 10, 2006 at 03:01 PM | Permalink


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The Fifth Circuit in addressing an acquitted charge sentencing and found the preponderance of the evidence verdict, “ The Tail” that ate the beyond a reasonable doubt “Dog”; “Our court, therefore, has specifically emphasized that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001) (quoting Watts, 519 U.S. at 157). Although resolution of the current issue does not involve questioning any of these general rules, it does involve the scope of their application.

Vigil relies on the First Circuit's decision in United States v. Lombard, 72 F.3d 170 (1st Cir. 1995). In Lombard, the criminal defendant was acquitted of murder in state court, and convicted in federal court of illegal firearms possession arising out of the murders. Id. at 172. During sentencing in federal court, the defendant received a mandatory term of life in prison based on the same murders of which he had been acquitted in state court. Id. [*47] On appeal, finding that this case presented a circumstance where the "tail has wagged the dog," the First Circuit reversed and remanded for the district court to consider whether a downward departure would have been appropriate. Id. at 187. The First Circuit justified its conclusion on the grounds that this case raised serious questions as to situations where the sentence of an individual is made more severe through the application of an enhancement and/or a cross-reference than the sentence would have been for the crime of conviction alone. Id. at 178.”
UNITED STATES OF AMERICA v. PARTIDA, 385 F.3d 546 (5th Cir. 2004)
No wonder the court’s cannot recognize Booker as being constitutional error that defies harmless error analysis. If a man acquitted can still be sentenced, if a preponderance can satisfy the Constitution, why are “O.J.” and “Barretta” still walking the streets, go get them in California and sentence them for their acquitted murderous conduct.

Posted by: Barry Ward | Feb 10, 2006 4:12:26 PM

Wasn't the statutory maximum under the Hobbs Act 20 years anyway? After Booker, there's nothing precluding a judge from sentencing a defendant to the statutory maximum as long as such a sentence is reasonable. He could do that under 3553 factors, after taking the guidelines under "advisement." Booker is one of those "beware of what you ask for, you just might get it" decisions that in some cases could, and has, been used by judges to max people out when they perceive the GL's as too lenient. No-body talks about the newly endowed discretionary power to go upward rather than downward!

Posted by: RL Swainston | Feb 10, 2006 6:17:35 PM

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