Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues

As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, a case involving the status of acquitted conduct guideline enhancements in the wake of Booker.  Together with a terrific group of lawyers from Proskauer Rose working pro bono, I helped put together an amicus brief that we just sent off to the Sixth Circuit which seeks to make a number of refined statutory arguments about guideline enhancements based on acquitted conduct.  The full brief can be downloaded below, and this is how it starts:

Sentencing range enhancements based on facts alleged in charges of which a defendant has been acquitted (“acquitted conduct”) have long been among the most controversial features of the Federal Sentencing Guidelines, in part because acquitted conduct enhancements effectively nullify the jury’s determination in a criminal case. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court addressed this issue in a limited way when it held that consideration of acquitted conduct at sentencing does not violate the Double Jeopardy Clause. But now that more recent Supreme Court rulings have stressed the constitutional importance of jury determinations in the sentencing enterprise, the constitutionality of acquitted conduct enhancements under the Fifth and Sixth Amendments is questionable.  The supplemental brief for appellant Mr. White argues in detail that acquitted conduct enhancements violate the Constitution.

In addition to any constitutional infirmities, acquitted conduct enhancements raise distinct statutory concerns.  United States v. Booker, 543 U.S. 220 (2005), and its progeny stress that, because the Guidelines are now advisory, the directions that Congress set forth in the Sentencing Reform Act (SRA), and particularly the text of 18 U.S.C. § 3553(a), provide the ultimate instructions for sentencing decision-making by district and appellate courts.  Acquitted conduct enhancements in some cases — especially when they significantly affect the applicable Guideline range and the ultimate sentence imposed — may disserve the statutory purposes of sentencing that Congress enumerated in 18 U.S.C. § 3553(a) and sought to vindicate in the SRA.

In this case, where Mr. White’s Guideline range was more than doubled on the basis of acquitted conduct, the District Court did not adequately examine whether the sentence complied with the SRA and, in particular, the statutory purposes of sentencing.  Instead, the court reflexively treated acquitted conduct in the same way as convicted conduct without properly considering whether the enhancement would promote respect for the law and provide just punishment for the convicted offense.  The sentence should, therefore, be vacated and remanded.

Download WhiteAmicusBrief.pdf