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January 23, 2008

Distinguishing enhancements based on dismissed conduct and acquitted conduct

Providing another great read, the Sixth Circuit today continued its busy sentencing ways with an interesting ruling in US v. Conway, No. 06-4083 (6th Cir. Jan. 23, 2008) (available here).  Of particular note in Conway is this extended discussion of the distinction between sentencing enhancements based on dismissed conduct and based on acquitted conduct:

[Rejecting other defense claims] leaves a less conventional theory — that the Sixth Amendment prohibits courts from enhancing sentences based on charged, but dismissed, conduct.  Noting that our court recently granted en banc review in United States v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted, op. withdrawn, 2007 U.S. App. LEXIS 28902 (6th Cir. Nov. 30, 2007), which will consider whether the Sixth Amendment allows sentencing courts to rely on acquitted conduct in enhancing a sentence, see United States v. Watts, 519 U.S. 148 (1997), Conway maintains that a judge’s reliance on dismissed conduct presents a constitutional issue of equal magnitude.  We do not agree. In contrast to the defendant in White, Conway has not been acquitted of anything. He thus has no jury verdict to point to as evidence that the conduct underlying the dismissed counts could not be — or should not be — relied upon by a judge at sentencing. For that reason alone, sentencing based on dismissed conduct stands on far firmer ground than sentencing based on acquitted conduct.

But there is a broader problem with this argument.  The central premise of most plea agreements is that they waive the defendant’s Sixth Amendment right to a jury trial, not that they vindicate it.  Consistent with that premise, the plea agreement in this case makes it clear that the sentencing judge will determine what Conway’s sentence will be and will determine whether he possessed the shotgun. It notes that Conway “is aware that, in light of United States v. Booker, 125 S.Ct. 738 (2005), the United States Sentencing Guidelines are advisory” and that Conway “is aware that the Court has jurisdiction and authority to impose any sentence within the statutory maximum” for the offense to which he pleaded guilty. It then notes that Conway “is contesting that he had any ownership or possession of said firearm,” leaving no doubt that one of the issues that the court would have to decide was whether Conway possessed the shotgun. In contrast to the defendant who vindicates his Sixth Amendment right to a jury trial by contesting the indictment, by putting the government to its proof and by obtaining an acquittal, a defendant who enters a plea agreement like this one waives any constitutional right to a jury determination of guilt or sentencing facts — so long as the ultimate sentence falls within the statutory range.

January 23, 2008 at 01:18 PM | Permalink


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My initial thoughts:

How is conduct that has never been sent to a jury on "far firmer ground" than conduct for which the defendant was acquitted by a judge or jury? It seems to me that the Court's distinction is buttressed only by its conclusion. This excerpt challenges my understanding of plea agreements (which is perhaps mistaken). My understanding is that the agreement is (not perfectly, but almost) contractual in nature. In return for certain charges being dismissed, the government receives the benefit of a tidy conviction without consuming the resources necessary for a trial. If the government can offer to dismiss charges and then seek to impose a higher sentence on the basis of the dismissed charges, the consideration/bargain is ambiguous. Should a defendant be advised to sign a plea that rests on whether the benevolent judge will choose to honor the bargain the defendant believes he may receive? Is the risk of predicting whether the judge will use dismissed conduct to sentence an unreasonably difficult inquiry for a defense lawyer to make?

Ultimately, I am a firm believer that if a defendant makes a plea agreement with the understanding that the statutory maximum set forth in the U.S.C. represents the sentencing range, he makes any plea agreement at his peril (hopefully, defense lawyers are cognizant of this and make certain that the defendant has complete knowledge of the risk). I don't think it's fair, but I think that is the structure we are stuck with (for now). So, my criticism with the court's distinction is more theoretical and perhaps normative.

Posted by: Michael (ND Law Student) | Jan 23, 2008 3:16:42 PM

If dismissed conduct is usable against a defendant at sentencing, then the prosecutor has increased control of the sentence by indicting on issues he plans to dismiss later (because he cannot prove), but can increase the defendant's sentence after a plea agreement is struck or after the defendant is found guilty of any single one of the counts. Is that the America you want to live in? Is that justice?

Posted by: layperson | Jan 23, 2008 3:54:16 PM

It makes no sense, or nonsense of sense. The assumption is that the defendant is guilty of non-pleaded offenses when there is no such admission. It is equally plausible, and often times more realistic, to argue that the defendant did not plead guilty to some of the charges because he did not commit them! Further, by not pleading guilty to some of the charges, the defendant is saying "I did not commit those offenses." Then there is the overcharging factor which encourages a guilty plea to the actually committed crime(s).

Again, it is just a run around that bypasses the cost and burden of the government proving its case. It can have its cake and eat it too. As Michael (ND Law Student) points out, defense attorneys need to make clear that pleading not guilty to some of the charges but accepting the plea deal is, in the context of sentencing, actually pleading guilty too all of the charges. Add to that the penalty of exercising a right to trial, and it amounts to extortion.

That is because if the defendant does not plead guilty to what he she did (because added to that charge is what he/she did not do) then going to trial on the charges for which he/she is guilty of and innocent of amounts to a far more severe penalty -- because of the severe penalty for exercising the right to trial, even if found not guilty of the charge the defendant always claimed he/she was not guilty of.

Confusing? Yes, it is. To simplify it. Say a person is charged with petty theft and burglary for entering a store and stealing something. The petty theft is fairly straightforward if guilty of stealing anything. The burglary however could be more complicated. Did the person enter the store with the intent to steal? If not, not guilty of that charge. But if the defendant does not take the plea deal for petty theft and burglary because it includes the burglary offense, then there is the risk of a far more severe sentence because of exercising the right to trial. But even if the defendant pleads guilty to the petty theft, which he/she actually did (lacking intent to steal when entering the store) then he/she can still be sentenced (in a sense) as if the burglary were true as well.

There is often little benefit to plea bargaining under this system, other than because the penalty for exercising the right to trial is so severe that pleading guilty avoids it.

Posted by: George | Jan 23, 2008 4:14:15 PM

Is that the America you want to live in? Is that justice?

Right up until that part, I thought a valid point was coming. Ugh.

Under Apprendi, the maximum sentence a defendant can receive is the statutory maximum allowed based on the facts either admitted by the defendant or proven to the jury beyond a reasonable doubt.

If (hypothetically) possession of a machine gun carries a maximum sentence of 20 years, then once the defendant admits that he possessed a machine gun or is found guilty of that at trial, the judge can sentence him to 20 years.

Other conduct can guide the judge's discretion in choosing a sentence between zero and 20 years, but it can't push the sentence over 20 years. This is not that objectionable when one considers how much information comes in at sentencing. The defendant will talk about his awful childhood, his remorse, his relatively clean criminal record, his perfect attendance award in preschool, his family, his job, his lack of dangerousness, and his capacity for reform. The prosecution will talk about his criminal record, his dangerousness, the Guidelines, whatever. It's not completely outlandish to throw in dismissed, acquitted or uncharged conduct. Again, the safeguard for the defendant is that none of these things will move the ceiling on the potential sentence the defendant faces. Many judges want more discretion in sentencing and are happy that the Guidelines no longer constrain much. This *other* conduct, for better or worse, may help inform that discretion.

Prof. Berman and others have some interesting arguments to the effect that it shouldn't be allowed, but those arguments consist of something considerably more intelligent than "Is that the America you want to live in?"

Posted by: | Jan 23, 2008 4:17:35 PM

George writes:

But even if the defendant pleads guilty to the petty theft, which he/she actually did (lacking intent to steal when entering the store) then he/she can still be sentenced (in a sense) as if the burglary were true as well.

Only to the limit of the statutory maximum for petty theft. If that bothers you, then perhaps the problem is with the length of the statutory maximum for petty theft, whatever that might be.

Posted by: | Jan 23, 2008 4:21:24 PM

That's true and I wondered if petty theft was a bad example.

What if it is a wobbler though and the ADA offers a year in the county if the defendant pleads guilty to both the petty theft and the burglary?

Defendant: But it wasn't a burglary. I had money and planned to buy something. The theft was spontaneous.

ADA: Take it to trial then, but if you do I'm going to charge your prior.

The defendant does, is found guilty of the petty theft but not guilty of the burglary, and is sentenced to prison for petty theft with a prior.

The statutory max is not the point.

Posted by: George | Jan 23, 2008 4:52:20 PM

TalkLeft has a new post that bolsters my argument:

15 Inmates Freed Due to Drug Informant's Lies

On point: "Also revealing is that most of the inmates to be released pleaded guilty."

Posted by: George | Jan 23, 2008 5:12:17 PM

I thought you were complaining about the ability of a sentencing judge to factor in uncharged conduct at sentencing.

Now you're complaining about: (1) the fact that the plea bargaining system may encourage informants to lie, (2) the fact that the jury system isn't perfect, because defense counsel isn't always able to expose liars as such, and jurors aren't always able to figure that out, and (3) the fact that the combination of (1) and (2) may coerce innocent people into guilty pleas.

That seems to me to have very little to do with the ability of a judge to consider uncharged conduct at sentencing. Rather, the problem is with the overreliance on (or inadequate investigation/vetting of) informant testimony.

....assuming, of course, that TalkLeft has its facts right and that its anecdote is representative of a larger pattern.

Admittedly, it all has some relation to plea bargaining, but we're pretty far afield at this point.

The thing about plea bargaining is that it depends on the effectiveness of adversarial jury trials in sorting out innocent and guilty defendants and in getting it right on lesser included offenses and that sort of thing. If juries are 100% effective, then innocent people will never accept plea bargains, knowing that they'll be vindicated at trial, and guilty people will almost always take plea bargains, knowing that they're getting a break. Thus, only guilty people go to jail, and only for the precise crimes they actually committed (or less).

If juries are less than 100% effective, then innocent people can be coerced into guilty pleas. But that's not the fault of the plea bargaining process. Rather, it's the fault of the jury system.

If your complaint is with the ability of prosecutors to overcharge, that's another issue altogether, and probably has more to do with the way criminal statutes are drafted than with with anything related to this post.

Posted by: | Jan 23, 2008 5:36:41 PM

Are we engaging in a normative debate here, or are we talking law?

Whether a judge normatively should be able to consider any facts not found by a jury in sentencing a defendant, regardless of the statutory maximum, is a wholly distinct question from whether the Apprendi/Blakely rule imposes limits on the ability of federal judges to consider non-jury found facts -- including but not limited to "acquitted conduct" -- in sentencing a defendant.

The obvious answer after Booker -- and Justice Scalia's recent concurrence in Gall recognizes this point -- is that a federal sentence is unconstitutional if the appellate court would have held it "unreasonable" but for the existence of judge-found facts (save for those falling within the Almendarez-Torres exception). This is *not a hard answer* to discern. Why then do people keep distinguishing between "acquitted conduct" on the one hand and "other judge-found facts" (like "dismissed conduct") on the other? The distinction is utterly irrelevant for Apprendi/Blakely purposes. Moreover, a normative argument that "acquitted conduct" stands on different footing from any other judge found fact is arbitrary, since facts that the prosecutor does not even present to the jury are even less likely to be true than facts the jury has found not proved beyond a reasonable doubt.

Posted by: Aaron | Jan 23, 2008 6:11:37 PM

And I will also add this thought: If lawyers continue to make the "acquitted conduct" argument, then important and cert-worthy cases are going to slip through the cracks. Take the case of Robert Mercado Jr., for example. Mr. Mercado was convicted of a RICO offense carrying a guidelines range of 4 years, if I recall correctly. The judge, however, sentence him to 30 years in prison based on the judge's factual finding that Mercado also committed a murder during the course of the conspiracy -- a charge that the jury acquitted on. Mercado's lawyer could have simply argued on appeal that, in assessing the "reasonableness" of Mercado's sentence, the appellate court could only consider the jury-found facts. If the jury-found facts alone were sufficient to render a 30 year sentence "reasonable," then the sentence is constitutional. Otherwise, the trial judge undeniably would have imposed a sentence "greater than that authorized by the jury's verdict alone." This is not a hard argument.

But what was Mercado's argument on appeal? That Watts is no longer good law and that a court is absolutely barred from considering acquitted conduct. And this was the same argument made in Mercado's cert petition. That argument has no basis in Apprendi, Blakely, Booker, Cunningham, Rita, Gall, or Kimbrough. Mercado's failure to advance the correct argument -- one that Scalia's concurrence in Gall *begs* defendants to make -- will likely cost him his case.

Posted by: Aaron | Jan 23, 2008 6:18:39 PM

"(1) the fact that the plea bargaining system may encourage informants to lie,"

No, that prosectuors will try to extort a guilty plea and if they cannot, they throw the book at the defendent for exercising a right to trial.

" (2) the fact that the jury system isn't perfect, because defense counsel isn't always able to expose liars as such, and jurors aren't always able to figure that out,"

It doesn't necessarily have anything to do with the jury system and 95% of the time does not, since only about 5% of the cases go to trial. That is because of the severe penalty for exercising the right to trial.

"(3) the fact that the combination of (1) and (2) may coerce innocent people into guilty pleas."

How can anyone not see this? If the defendant cops a plea, he/she is shafted and sentenced on dismissed conduct. If he/she takes it to trial, he or she is shafted for doing so. The prosecution gets to have its cake and eat it too and cannot lose unless the defendant is acquitted on all counts, but even then he/she still might get shafted, say with federal or state filings or civil suits or who know what.

Under this system there is too often no logical reason to plead guilty other than to avoid the severe consequences of exercising the right to trial. Why should the prosecution go to the trouble of proving the most unprovable charges when the judge will sentence as if they were proven?

Bottom line, 1.plead guilty or else, 2. but know that you are pleading guilty to every charge, dismissed or not. 3. That will still result in a far lower sentence than taking it to trial though. 4. Know that if you do take it to trial, if found guilty of anything you may as well have been found guilty of everything. 5. See 1 above.

Can you not see how absurd that is?

Posted by: George | Jan 23, 2008 7:49:27 PM

Charges are dismissed for a variety of reasons.

The first time charges may be "dismissed" is either at the indictment or preliminary examination stage. Since this is a probable cause determination, it is unlikely to pass the standard used at sentencing (although I suppose it could; I am not up on the civil standards as much these days, the criminal one having been relaxed enough).
Second, a motion stage could dismiss a charge (particularly at the federal level) for reasons unrelated to the factual basis of the charge. Example: no jurisdiction.
Third, charges can be dismissed at the directed verdict/Rule 29 motion stage.
Fourth, outside of a litigation setting, plea bargaining may result in dismissal of certain charges. I.e., the prosecutor agrees to drop an additional charge or an enhancement. A factual basis may be stipulated at this stage (at least in state courts), or offered only as a bare minimum.
Finally (not being exhaustive here, just running through the options), a count results in acquittal. In this scenario, the prosecution has presented facts relating to the underlying charge but the jury has simply found that there is insufficient evidence to convict beyond a reasonable doubt. Incidentally, this doesn't mean that a majority of jurors has so found; they may all agree to charges 2 and 3, but disagree as to 1 and decide to play Solomon. We'll never know.
From my perspective, acquitted conduct presents the most compelling case for a within-statutory limits enhancement. It has survived plea bargaining, pretrial motions and directed verdicts. Because it survived a directed verdict, it was tested by more stringent evidentiary standards than is typically present at sentencing.

Posted by: Alec | Jan 23, 2008 11:18:08 PM

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