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December 29, 2006

First circuit says acquitted conduct enhancements still fine

In a cursory opinion, the First circuit in US v. Gobbi, No. 06-1643 (1st Cir. Dec. 28, 2006) (available here), rules that even after Booker acquitted conduct, if "proved to the sentencing court by a preponderance of the evidence, may form the basis of a sentencing enhancement."  As AL&P notes here, the "analysis is disappointing, since it just refers to pre-Booker caselaw."

The Gobbi has me thinking again about my sincere questions about acquitted conduct.  It also makes me proud again of the far more thoughtful work done by district courts on acquitted conduct after Booker in cases like Ibanga (discussed here) and Pimental (discussed here) and Coleman (discussed here).

December 29, 2006 at 07:56 AM | Permalink


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This is a diappointing decision. The court relies upon Dorcely, which you cited in the your July 2006 blog. I am troubled by what appears to be an ever increasing effort by the Circuits to emasculate the essence of Booker/Fanfan. Even before Booker it troubled me that courts could still rely upon acquitted conduct to enhance a sentence under the general title of relevant conduct. Does anyone have an opinion as to whether the Rita/Claiborne cases will resolve any of these issues? It seems that "reasonableness" is whatever a court feels like it is on any particular day with no genuine guidance for the practitioner.

Posted by: Bernie Kleinman | Dec 29, 2006 8:44:05 AM

But wasn't the point of Booker's remedial opinion to keep in place the sentencing system Congress enacted as much as possible, save the mandatory requirements?

Put another way, why should Booker (as opposed to the Fifth and Sixth Amendments more generally) affect the acquitted conduct analysis?

It seems to me that Booker was not intended to allow the courts to rewrite the law of sentencing. Doing that seems more the province of Congress, and I fail to see how its failure to act somehow gives the courts power to rewrite sentencing law under the guise of the Sixth Amendment.

Posted by: Law Clerk | Dec 29, 2006 10:12:22 AM

Law clerk: I am not looking for a "rewriting of sentencing law under the guise of the Sixth Amendment." Rather, I just think circuits have an obligation to re-examine prior precedents in light of new SCOTUS decisions.

Keep in mind that, as I have stressed in prior posts, the text and history of the Sentencing Reform Act of 1984 does not indicate that members of Congress desired or even expected that acquitted conduct would be used to enhance sentences. Indeed, the langauge of 3553(a) suggests that Congress did not expect acquitted conduct to be used for formal sentencing enhancements.

Relatedly, in light of constitutional history and the role of juries, why should the burden be on defendants to show that acquitted conduct enhancements are improper? Don't rule of lenity and/or constitutional doubt doctrines suggest that the SRA should now be interpreted to disallow such enhancements?

Put in your terms, it is not clear that Congress enacted a system based on acquitted conduct, but now lower court seems even to seriously explore this possibility.

Posted by: Doug B. | Dec 29, 2006 10:28:02 AM

Using acquitted conduct to enhance sentences is very problematic. To a certain extent, it denigrates the place of the jury in our system.

Posted by: federalist | Dec 29, 2006 12:02:02 PM

You can find another analysis of this case on the Appellate Law Blog:

Posted by: Bernie Kleinman | Dec 29, 2006 7:34:18 PM

As a defense attorney the use of "Acquitted conduct" in determining sentence, even using the quantum of proof of "preponderance of the evidence" seemed always to be a freebee [sp?] that the prosecution had. What was the concomitant defense freebee? In Watts (519 US 148) the Court held that use of acquitted conduct in sentencing did not violate the Double Jeopardy Cl. Whether and to what extent the use of "acquitted conduct" survives Booker is another matter. In Booker Justice Stevens wrote that Watts was not inconsistent with either the present holding in Booker, or with Blakely. 125 SCt at 725 & n. 4. What is disappointing is how the Circuits have interpreted Watts in light of Booker. Here is language from the leading 2d Cir. case:
"As a preliminary matter, we note that Justice Stevens' discussion in Booker indicates that Watts remains good law and acknowledge the Supreme Court's admonition that Courts of Appeal should continue to follow directly controlling precedent even where that decision appears to rest on reasons rejected in another line of decisions. See Agostini v. Felton, 521 U.S. 203, 237-38, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997). In any event, we do not read Booker to undermine the continued validity of the ruling in Watts."
US v. Vaughn, 430 F3d 518, 526 (2d Cir. 2005).
It strikes me as a results oriented decision and a wrongful analysis of Justice Stevens' opinion. If this is the case, and a judge decides to reject acquitted conduct in imposing sentence, and the govt appeals, it is likely the 2d Cir. would reverse and remand for re-sentencing, notwithstanding other cases that talk about the discretion the judge has in imposing the sentence.

Posted by: Bernie Kleinman | Dec 29, 2006 9:12:29 PM

Prof Berman:

I agree that the SRA or even the Constitution may not permit the use of acquitted conduct.

My only point is that Booker doesn't seem to speak to the issue, and I worry that some are trying to take Booker too far.

Posted by: Law Clerk | Dec 29, 2006 9:40:50 PM

Law Clerk, I think you are correct that Booker does not directly speak to the issue. But, don't you think that the essence of Blakely/Booker and a whole line of cases including Jones/Apprendi and even Winship is that the accused should only be punished for the conduct that a jury of his/her peers has found that person guilty of beyond a readonable doubt? The Guidelines, taken as gospel by sentencing judges, added a whole slew of factors that enhanced one's sentence based upon conduct that may not even have been directly part of the case at bar. Admittedly there were bases for downward departures and mitigating factors, but, you know as well as I, that downward departures were a helluva lot more difficult to establish than enhancements. And, Koon made that especially true. What defense counsel ended up looking for, and then having to fight for were 5K letters, or trying to fit your client into the sentencing statute's safety valve [3553(f)].

Posted by: Bernie Kleinman | Dec 29, 2006 10:06:21 PM

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