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November 14, 2007

Opposition to considering acquitted conduct en banc in White

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would "strongly recommend" en banc review of the "important question" of "whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005)."  This quoted language comes from the panel's per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).

As detailed in this post, last month an en banc petition was filed in White and I am eagerly hoping the White panel will convince the majority of the Sixth Circuit to take up the acquitted conduct issue.  Last week, the government filed its brief opposing en banc review in White.  I received a copy of that opposition, and it can be downloaded here:

Download govt_en_banc_opp_in_white.pdf (I think the pdf was scanned upside-down, but the brief prints out fine for reading).

Not suprisingly, the government asserts that the defendants claims are foreclosed by the Supreme Court's Watts decision a decade ago.  But, as I have suggested in a number of prior posts, I do not think Watts ends this debate in the light of Blakely and Booker and Rita.

UPDATE:  Because some commentors seem to think Watts ends this debate, it is valuable to remember that Booker clearly explains that Sixth Amendment issues were not raised on addressed in Watts.  Moreover, the fact that Watts indicates that it is not per se unconstitutional to enhance sentences based on acquitted conduct in some cases does not logically entail that it is always constitutional to enhance sentences based on acquitted conduct in all cases.

November 14, 2007 at 09:24 PM | Permalink


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If the issue is whether intervening SCOTUS caselaw has undermined on-point precedent, aren't the en banc court's hands pretty well tied? Only SCOTUS can overrule its own precedent. Seems like a bit of a waste of time. Am I missing something?

Posted by: federalist | Nov 14, 2007 9:39:18 PM

And the hits keep on coming. The Second Circuit in United States v. Freeman affirmed the imposition of a life sentence today based on--you guessed it--acquitted conduct.

Posted by: Gogigantes | Nov 14, 2007 9:55:52 PM

For once I agree with federalist. (I just threw up in my mouth a little bit.) The Supreme Court has said time and time again (wrongly, in my view) that only it can overrule its precedent. So no matter how much intervening cases from the Supreme Court chip away at a prior opinion, it is still the law until the Supreme Court says otherwise.

Posted by: Doug | Nov 14, 2007 10:53:44 PM

I don’t think it is that simple. While, it is, of course, easy to say that the Supreme Court has not explicitly overruled one precedent (and many courts do this) Booker and Blakely (and pretty much all Supreme Court cases) has the effects on other precedents.

This is probably why many courts have rejected Booker and Blakely (some District Judges, at one point said they simply would “rarely” follow it because it only applies in one case). After all, they were waiting for very very specific guidance.

Specifically, Blakely contains language that might indicate that acquitted conduct cannot be used at sentencing. (“Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. Without that restriction, the jury would not exercise the control that the Framers intended.”). Granted, it is from Scalia, who many say does not follow the law because he is an activist liberal, but it is what it is.

Is this binding? Who knows? Is it error to assume that it is? It is only error of the Supreme Court reverses it.

What this really means is that it is a political decision whether a lower court wants to set an issue up for the Supreme Court by ruling for the defendant or the government. Usually ruling for the defendant is a better way to set it up, since a cert. petition from the government on a single case is probably more persuasive.

Scalia ended Blakely with the childish line that “The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.”

That is completely silly. Juries are mostly made of uneducated people. In fact, prosecutors are told to pick uneducated juries. A single employee of the state with a law degree is much better suited to condemn the kind of person that gets arrested, and who has been acquitted by a jury composed of uneducated morons then any hodge-podge of society.

Posted by: S.cotus | Nov 15, 2007 8:23:18 AM

You know, S.cotus, you bring up some very interesting and well-reasoned points and then you blow it. Speaking of feeling nauseous, finding myself agreeing with Scalia is rather disturbing. But if what he says is "silly," then so is the whole idea of jury trials. I don't recall reading that the revered "framers" said juries should decide whether facts support a conviction, and then the judge in the case could act as if they had decided differently. If the public consists of uneducated morons, then the framers (and the British legal system since 1100 or so) must have meant for matters of fact to be decided by uneducated morons. But I don't think that was the idea. I think they had some idea that the common people possessed "common sense" and that that had some validity.

Apparently, the founders specifically wanted trial decisions not to be made exclusively by lawyers. They wanted them to appear reasonable to common people, not just legal scholars. And no, they didn't specify university educations or high school diplomas for jurors.

It appears that we accept the idea that our Constitution contains a lot of wisdom and is worth following as our country evolves. If the people on juries are uneducated morons, then that is the fault of our educational system and the prosecutors who, you say, choose them deliberately for their stupidity. Both of those problems could be addressed if we chose to do so.

However, I do not see how giving judges free rein to ignore what juries say follows the Constitution. I also am unable to find anything in the Constitution which supports the notion that we are all better off with a government consisting only of lawyers. "The kind of person who gets arrested" could be any one of us. They are CEO's of corporations as well as poor people, educated people and the uneducated--yes, even lawyers! If you truly believe that we would be better off with a lawyer as dictator, then why do you even bother to discuss the Constitution? You obviously believe its principles are "silly."

Posted by: disillusioned layman | Nov 15, 2007 9:42:12 AM

S.cotus, you read the music, but fail to catch the tune. The issue is whether the jury's verdict, standing alone, authorizes the range of sentences available to the judge. Blakely doesn't say a whole lot about what facts can influence the judge in choosing within the jury-authorized range.

Posted by: federalist | Nov 15, 2007 9:46:55 AM

Quick question. Is the petition for en banc available anywhere online.


Posted by: Alex | Nov 15, 2007 9:53:09 AM

Federalist, Blakely doesn’t say a “whole lot” but it does say something about the nature of “facts.” It can be argued that the language that the “authority” to sentence “derives” from the jury’s verdict (as a constitutional matter) disables the judge from disregarding such a verdict in determining the rest of the sentence.

disillusioned layman, You are a non-lawyer. You don’t count.

Posted by: S.cotus | Nov 15, 2007 10:11:49 AM


So the other uneducated people you speak of ARE also the non-lawyers that you hold dear to your heart, you know like your mate, your mother, your children, etc.
You do not have to be a lawyer or even a member of the legal profession to be able to make an informed, educated and reasonable decision. So who/what were you before you became S.COTUS? Uneducated??? Hummm... Stop throwing a tantrum when someone does not agree with you. You spout off like a little boy in all the post when someone disagrees, as Da Man has pointed out before...
And last but no least, to qoute you: the DOJ should just stop arresting people. Problem solved.

Posted by: Stiff | Nov 15, 2007 10:52:56 AM

Yeah, S.cotus, it can be argued. But the reality is that the argument is pretty weak--at least as far as arguing that Blakely nukes earlier on point precedent. Blakely didnt deal with how the judge arrives at within range-authorized-by-jury-verdict.

In any event, just because there's an argument about a Supreme Court case being no longer controlling in light of intervening cases that passes a Rule 11 type standard does not mean that an en banc court is going to simply toss aside Supreme Court precedent. And if it that is not on the table, what's the point of en banc hearing?

Let me know when you figure out that the interplay between the 11th Amendment and the 14th has nothing to do with selective incorporation.

Posted by: federalist | Nov 15, 2007 11:07:18 AM

Federalist, I don’t know how weak or strong the argument is. There are a lot of deeper ramifications to every part of Blakely that have not been throughly explored as of yet.

The problem with precedent from the Supreme Court, is different people have different views of what it means. Many believe that Apprendi-Ring-Blakely represented a sea change in 6th amendment jurisprudence, and stuff that came before them is overruled. Whether the court sees it that way, or wants to be intellectually honest about whether White actually can be reconciled with Blakely is another story.

In my experience roughly about ½ of all circuits will bend prior precedent to fit recent decisions, the other ½ will say default to saying that it can’t be remedied. Sometimes this is the result of political decisions. Sometimes it is unknowning.


“So the other uneducated people you speak of ARE also the non-lawyers that you hold dear to your heart, you know like your mate, your mother, your children, etc.”

Ha ha. If they were not lawyers, I would not associate with them.

“You do not have to be a lawyer or even a member of the legal profession to be able to make an informed, educated and reasonable decision.”

I don’t see how this is possible.

“So who/what were you before you became S.COTUS? Uneducated??? Hummm.”

A zygote.

Posted by: S.cotus | Nov 15, 2007 11:36:56 AM

S.cotus, why not just say you like to write satire? Indeed, you could write a Swiftian "Modest Legal Proposal" from the point of view of a strawman sockpuppet. You could (rightfully) argue that the great unwashed masses are puppets to propaganda and the best way to pass stupid laws is through referendum. BushCo, O'Reilly and Coulter lovers would love it and take it as The Truth and we could all laugh at them.

Or maybe I'm uneducated (being a non-lawyer) and you are serious. No, no way. On the other hand, what about dumb referendums that get the popular vote?

Posted by: George | Nov 15, 2007 1:07:23 PM

I personally don't find the acquitted conduct arguments persuasive, simply because preponderance and clear and convincing evidentiary standards could be sufficient to establish the fact of the conduct and the jury has already authorized the range by the conviction.

On the other hand, maybe there are instances where the acquitted conduct results in a sentence that is totally unwarranted. I really doubt that is possible, though, because the jury-authorized sentence, by convicting the defendant of the lesser offense, already exposes the defendant to the sentence he receives.

Posted by: Alec | Nov 16, 2007 3:14:12 PM

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