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June 10, 2007

A high-profile appeal on acquitted conduct sentencing

This lengthy article in the Daily Report, Atlanta's legal paper, details some of the particulars of Friday's oral arguments in the Eleventh Circuit in the appeal by former Atlanta mayor Bill Campbell.  As the article notes, I accepted this "high-profile case in hopes of drawing attention to the acquitted conduct issue."  In addition to providing an extended account of the oral arguments, the Daily Report provides links to Campbell's main brief and reply brief and to the government's brief.

Since I took on this case last year, I have not blogged at all about the particulars.  And this will likely be my last post about the case until a decision is rendered by the Eleventh Circuit (which I hope will come before too long).

June 10, 2007 at 08:27 AM | Permalink


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I agree with your view that sentencing based on acquitted conduct (and, indeed, criminal conduct that hasn't resulted in a conviction) is problematic. But I think that the theoretical basis for these challenges needs to be far more specific than simply saying that a district court can't "excessively" rely on acquitted conduct. What does it mean to "excessively rely"? The merits brief here doesn't say. All it says is that *in this case* the reliance was excessive. That might be true, but it gives the circuit court no guidance on where to draw the line, or what sort of standard it should provide to district courts.

It seems to me that one bright line is that a district court ought not be able to employ judicial fact-finding to insulate a sentence from reasonableness review. Here, the judicial fact-finding -- whether based on acquitted conduct or not -- bumped up the defendant's Guidelines range. Thus, what would have been an upward variance subjected to effectively stricter appellate review became, as a result of judicial fact-finding, a true heartland sentence that appellate courts virtually rubber stamp. This seems to clearly violate the spirit, if not the rule, of Blakely itself -- the "statutory maximum" is the maximum sentence that the judge "could have imposed" absent the additional finding of fact. In a circumstance where a judge has used a finding of fact to bump a defendant into a different Guidelines range, to the extent this is permissible it effectively prevents the appellate court from assessing whether the sentence *would have been affirmed* absent that additional finding of fact.

I am crossing my fingers for a positive outcome in the 11th Circuit case, but I think that, as a whole, propenents of your view need to move away from abstract notions of fundamental fairness and attempt to craft a bright line legal rule that fits within the Blakely/Cunningham framework.

Posted by: Aaron | Jun 10, 2007 2:29:12 PM

Fair concerns, Aaron, though your argument is one to be made to SCOTUS and/or Congress and the sentencing commission. The Eleventh Circuit is obligated to follow controlling precedents which state that a circuit court is to review sentencing determinations for reasonableness (which arguably dovetails with fundamental fairness concerns).

The arguments set forth in the Campbell briefs to the Eleventh Circuit attend to, as they must, the current legal realities of circuit court sentencing review. Of course, the coming Rita decision might alter those realities.

Posted by: Doug B. | Jun 10, 2007 4:56:30 PM

I certainly agree with the sense of what Aaron is suggesting. In essence, Blakely and Cunningham hold that sentencing must be fine-grained. By this I mean that the problem must be deconstructed, thereby framing a jeopardy argument (sentencing agenda), which is composed of provocations. Then the State’s response to each of those provocations (sentence) must be differentiated. Blakely recognized that a crime is one provocation and the fact that that crime was an offense is another provocation. Justice Ginsburg correctly sensed the difference. Being a criminal offender is a third provocation and the conclusion to a jeopardy argument.

Acquitted conduct is relevant to the State’s responses to some provocations, but not others. For example, it is relevant to whether the person in question has a significant risk of committing another crime, which is a sentencing consideration with respect to being a criminal offender. But it has no bearing on the State’s responses with respect to the fact that the person’s crime was an offense and holding him or her accountable.

The Federal Guideline system is course-grained. No wonder the Supreme Court made it advisory. It mixes apples and oranges. It does not discriminate between the three provocations described above and the State’s responses to those provocations. Course-grained sentences beget course-grained correctional programs. Correctional people cannot and will not do better until legislators and judges’ get their act together and adopt fine-grained sentencing systems, thereby encouraging and making it possible for correctional administrators to formulate fine-grained correctional programs that are tailored to correct specific problems.

Posted by: Tom McGee | Jun 10, 2007 5:35:21 PM

You're right, Doug. I was just trying to get a head start on the Supreme Court briefing! (If your client loses, I assume you'll petition for cert; if the Government loses, you better believe it will petition for cert.)

Posted by: Aaron | Jun 10, 2007 5:40:40 PM

December 5, 2009 I was found not quitly by a jury for Penal Code 243.(e)(1)M Battery to a cohabitant and charged with M Penal Code 591. M Penal Code 591.5 with these two guilty verdicts the judge sentenced me with Domestic Violence , a 3 year criminal restraing order, 3 years of probation, 15 days in jai 3 days served, $250. fines and restitution, Anger Management classes.
The maximun punishment sentence is $500. or 1 year jail.The case is in the appeal process. How can a judge overturn the jurys verdict and impose Domestic Violence on the two charges? I can not work as a caregiver or nanny and I am 55 years old never been violent in my life.

Posted by: Lana | Feb 8, 2009 3:51:55 PM

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