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January 10, 2008

Supplemental brief in Sixth Circuit en banc case on acquitted conduct enhancements

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.  Earlier this week, cousel for the defendant in White filed his supplemental brief (available below).  This new brief make a number of nuanced arguments about the illegitimacy of sentences based on acquitted conduct in light of old and new Supreme Court decisions. 

Especially for anyone involved in a case in which acquitted conduct enhancements may be involved, this supplemental brief is a must-read.

Download white_en_banc_supplemental_brief.pdf

January 10, 2008 at 07:12 PM | Permalink


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Can we please -- please, please, please -- stop referring to this as an "acquited conduct" problem? It doesn't make a damn bit of difference whether the judge is relying on "acquited conduct," conduct that was never charged to begin with, or conduct that the jury hung on. The only thing that matters is whether the defendant was given a sentence *that would have been unlawful but for the trial court's finding of facts.* Under post-Booker reasonableness review, the *only question* that the Courts of Appeals' should be asking in any particular case is whether, considering *only the facts found by the jury beyond a reasonable doubt,* the defendant's sentence is reasonable. Essentially, when the Courts of Appeals are conducting reasonableness review, any facts that the jury did not find beyond a reasonable doubt should be *redacted* from the record that the Courts of Appeals are reviewing.

Posted by: Aaron | Jan 11, 2008 2:28:19 PM

"Acquitted conduct" falls into a category separate from other offense conduct used to increase a defendant's sentence. A relatively simple hypothetical demonstrates why.

Assume a defendant is convicted of distribution of a controlled substance, and the absolute statutory maximum for the offense is twenty years. Further, assume that the trial judge has absolute sentencing discretion, subject only to the twenty-year maximum. Finally, assume the judge concludes that the defendant (i) distributed 1,000 grams of cocaine, (ii) obstructed justice in connection with the investigation, and (iii) killed a rival drug dealer. If the defendant was never charged with obstruction of justice and murder, then (because he has absolute discretion) the judge could take take those factors into account in imposing sentence. In other words, the judge should not be reversed for imposing a fifteen-year term based on his consideration of each factor -- he had the discretion to impose such a term even if he only considered the first factor.

However, the outcome is arguably much different if the defendant was (i) charged with cocaine distribution, obstruction of justice, and murder, but (ii) acquitted of obstruction of justice and murder. The argument is that, notwithstanding the judge's absolute discretion, the jury's verdict should preclude consideration of the defendant's conduct in regard to the acquitted counts.

As a defense attorney, I can certainly appreciate Aaron's assertion that the only basis for determining facts used in connection with a sentencing decision should be the jury's verdict. While Aaron's position may have some merit, it only makes sense when the trial judge's sentencing discretion is directly tied to the presence of facts which have been admitted at a plea or found beyond a reasonable doubt by a jury. In the federal system, because the guidelines have been declared to be "advisory" (see Booker), Article III judges have much more discretion than judges in New Jersey (see Apprendi), Washington (see Blakely) or California (see Cunningham).

Best of luck to Mr. White and his counsel.

Posted by: Chris | Jan 13, 2008 10:40:20 AM

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