In (timely?) other news, Ninth Circuit approves use of acquitted conduct

Perhaps just to prove my claim that the Supreme Court is most pro-defendant appellate court on issues of sentencing procedure, the (purportedly liberally) Ninth Circuit today in US v. Mercado, No. 05-50624 (9th Cir. Jan. 22, 2006) (available here) approves judicial use of acquitted conduct to enhance sentences.  Mercado is a split decision with Judge Fernandez ending the majority opinion this way:

We join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.  We hold that Booker has not abrogated the previously prevailing constitutional jurisprudence that allowed sentencing courts to consider conduct underlying acquitted criminal charges.

Judge Betty Fletcher finishes here dissent this way:

Had the district court not rejected the jury's finding, defendants would have received a dramatically reduced sentence — a fact disputed by nobody in this case. To hold that any sentence beneath the statutory maximum is acceptable is not enough: Apprendi requires examination "not of form, but of effect."  Id.  And here the effect was to expose defendants to a dramatic increase in punishment based upon conduct for which the jury refused to authorize punishment in the only way it could — by acquitting defendants of the most serious conduct with which they were charged.  Neither Jones, nor Apprendi, nor Ring, nor Blakely, nor Booker countenance this result.  I would vacate defendants' sentences on Sixth Amendment grounds and remand to the district court for re-sentencing.

Hmmm... now that Cunningham can be added to Judge Fletcher's list, I have to say I think the dissent gets the better of the arguments.