A high-profile case for sentencing based on acquitted conduct

As detailed in articles here and here, a "federal jury served up a mixed verdict Friday to former Atlanta Mayor Bill Campbell, convicting him on three counts of tax evasion, but acquitting him on four corruption charges."  Interestingly, this Los Angeles Times account closes by noting that "after the verdict, the prosecutors were subdued but insisted that they were not disappointed that the jury had found Campbell guilty only on the three tax counts and not the racketeering and bribery charges."

Informed followers of federal sentencing know one reason why prosecutors might not be too disappointed by the split verdict: notwithstanding the acquittals, Campbell can still be sentenced for racketeering and bribery if the sentencing judge believes he is guilty by a preponderance of evidence.  (As detailed here, the Eleventh Circuit in Duncan ruled soon after Booker that it was still permissible for judges to enhance sentences based on acquitted conduct.)

This Atlanta Journal-Constitution article previews Campbell's sentencing (which likely won't be for a few months) and rightly spots the acquitted conduct issue:

Following Friday's verdict, prosecutors said Campbell was guilty of not reporting $147,000 in income for 1997, 1998 and 1999.  Steve Sadow, one of Campbell's former attorneys, said that if that is the case, prosecutors could argue that Campbell did not pay about $40,000 in taxes.  Under federal sentencing guidelines, this amount calls for Campbell to spend between 10 months and 16 months in prison, said Sadow, who is an expert in sentencing guidelines.

The sentencing range could increase to between 21 months and 27 months in prison if [US District Judge] Story finds that $10,000 of unpaid taxes in any one year came from corrupt activities.  And even though Campbell was found not guilty of the substantive corruption counts, the acquitted conduct can still be used against him at the time of sentencing, Sadow said. "There is going to be a real fight over all of this," Sadow predicted.

Posts on acquitted conduct and related issue:

• Ninth Circuit (en banc) approves acquitted conduct enhancement
• Second Circuit upholds sentencing based on acquitted conduct
• Seventh Circuit says reliance on acquitted conduct still okay after Booker
• Judge Gertner speaks on acquitted conduct
• In praise of Okai and its burden of proof insights
• Another potent district court Booker opinion (from my backyard)
• Further reflections on burdens of proof and acquitted conduct