New academic paper on acquitted conduct after Booker

As regular readers know, I have strong feelings about acquitted conduct sentencing enhancements after Blakely and Booker (and these feelings are surely impacted by the fact that I have beeing involved in a lot of post-Booker acquitted conduct appellate litigation).  Consequently, I plan to read with great interesting this new piece I noticed on SSRN, titled "'Doing Time'.... After the Jury Acquits: Resolving the Post-Booker Acquitted Conduct Sentencing Dilemma."  Here are portions of the article's (long) abstract:

For the past two years, post-Booker cases have revealed deep contradictions between three important, but directly competing, constitutional-policy imperatives, i.e. (a) defining the limits of Congress' power to establish uniform sentencing policy and procedures, to eliminate or reduce apparent disparities in sentencing between judges; (b) re-establishing the system of individuated, case-specific sentences by permitting broader judicial discretion in sentencing; and (c) protecting the Sixth Amendment right to jury-found facts as a bulwark against governmental over-reaching, in the context of judicial decision-making.

Within the last several months, the [Supreme] Court decided Rita v. United States and Gall v. United States, which go a long way in sorting out the proper relationship between the first two policy imperatives above. However, the proper relationship between judicial discretion in sentencing and the Sixth Amendment right to jury-determined facts in sentencing, established in Apprendi and Blakely, is yet to be definitively addressed by the Court, post-Booker....

This article examines the unresolved, post-Booker contradiction between judicial discretion in sentencing and the Sixth Amendment right to jury-found facts, by considering the circumstance in which the contradiction is most plain, the judicial use of acquitted conduct to impose a sentence based on facts the jury has considered, and rejected, in an acquittal.  The article advances the position that the minority view expressed in lower court cases, that acquitted conduct may never be used by a sentencing court in light of Apprendi and Blakely (at least with respect to facts related to proof of the elements of the acquitted offense), is essentially correct as a matter of principle, and simple logic. However, the broad discretion entrusted to the sentencing court by the remedial measures described in Booker, Rita and Gall, requires principled line-drawing, if the jury is not to be supplanted by judicial fact-finding in sentencing, in apparent contravention of the Apprendi/Blakely/Booker Sixth Amendment rationale.

Some related posts on acquitted conduct enhancements after Booker:

• Split verdict in Wesley Snipes trial ... and another potential high-profile acquitted conduct case
• Sixth Circuit going en banc on acquitted conduct enhancements!
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• A terrific district court opinion on acquitted conduct
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing