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October 5, 2007

Will the Sixth Circuit consider acquitted conduct enhancements en banc?

An intriguing little opinion today from the Sixth Circuit in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here), indicates that there is division within that court over acquitted conduct enhancements after Booker.    Here is the heart of the per curiam opinion in White:

In this sentencing appeal, after two members of the panel agreed to an opinion reversing the defendant's 14-year-upward adjustment based specifically on conduct for which the jury had acquitted the defendant, another panel of our court rendered an opinion in United States v. Mendez, ____ F.3d ____, 2007 WL 2316498 (6th Cir., Aug. 15, 2007) to the contrary.  The panel in Mendez filed its opinion for publication before the majority released its opinion in the instant case.  The Mendez opinion reaches the opposite conclusion concerning the use of acquitted conduct to enhance a criminal sentence.  It continues to allow the use of acquitted conduct to increase a sentence. If the majority in the instant case had filed its opinion, a conflict of opinions would exist in the Sixth Circuit.

Therefore, the panel has agreed to affirm the sentence in the instant case, including the enhancement based on acquitted conduct; but the panel strongly recommends that counsel for the defendant file a petition for en banc rehearing on the question of whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005), particularly in light of the language in Justice Stevens’ opinions at pages 240 and 278 and Justice Breyer’s opinion in Booker at page 251.

Upon the filing of the en banc petition, the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question. The panel does not believe that the other issues raised by defendant justify reversal of the judgment below.

Notably, the Mendez opinion (available here) in a per curiam ruling issued by a panel with only two one active Sixth Circuit judge (and one senior judge and one district judge sitting by designation).  It also has a fairly cursory discussion of the acquitted conduct issue.

As detailed in many prior posts (some of which are linked below), I think the issue of acquitted conduct enhancements merits much greater consideration after Blakely and Booker than it has generally received from the circuit courts.  I sincerely hope that the always-thoughtful (and often-divided) Sixth Circuit takes up this issue en banc ASAP.

October 5, 2007 at 10:04 AM | Permalink


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Check that. One active Sixth Circuit judge. Judge Siler is a senior judge.

Posted by: lt | Oct 5, 2007 11:36:28 AM

Judge Siler is senior, so Mendez has just one active Circuit judge, Cook. Reeves is a District Judge.

Interestingly, an en banc in the new White case would add Senior Judge Merritt to the court for merits review en banc (though not for the vote to consider granting en banc review).

If White came out about a week earlier, the Mendez defendant could have sought en banc in his case this past Monday, and then the merits group would include Siler instead of Merritt.

I'm sure that doesn't mean anything on the timing, but if it plays out as a one-vote margin, then the what-might-have-been will be interesting.

Posted by: 6th Circuit watcher | Oct 5, 2007 11:53:43 AM

Would love for the en-banc decision to include the effect of acquitted conduct on restitution orders.

Posted by: Brian | Oct 5, 2007 12:42:18 PM

I didn't think acquitted conduct would have an impact on restitution? See _Hughey v. US_, 495 US 411, 413 (1990)(definition of “victim” is to be construed narrowly, allowing restitution “only for the loss caused by the specific conduct that is the basis of the offense of conviction”). We've had a couple of cases where restitution got imposed based on relevant conduct that were reversed on appeal. I'd figure acquitted conduct would be similar.

Posted by: JDB | Oct 5, 2007 1:40:26 PM

The panel is really setting up the defense counsel for an ineffective assistance of counsel claim if he or she doesn't cite those cases I reckon.

Posted by: ohwilleke | Oct 5, 2007 4:50:49 PM

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