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February 24, 2008

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:

February 24, 2008 at 02:13 PM | Permalink


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This is slightly off-topic, but i'm trying to remember who said a fairly famous quote about habeas corpus, something like "There is no more habeas corpus in the federal system"? I think the context was some judge or professor lamenting Teague v. Lane or AEDPA's procedural hurdles. I hope someone here can refresh my recollection as to exactly what the quote was and who said it. Thanks!

Posted by: curious about habeas | Feb 24, 2008 2:56:18 PM

Slightly off topic?

Posted by: | Feb 25, 2008 12:12:10 AM

I still haven't seen an acquitted conduct case with facts as stark as these (pending sentence in DDC): My client was charged with 2 homicides on which the Government wanted the death penalty (acquitted on both); narcotics conspiracy (acquitted); RICO conspiracy (acquitted); distribution of 11 grams crack(convicted). Guideline level on convicted conduct - 24 (78 mos. max); Guideline level calculated in PSR - 43 (360 mos.-Life). In addition to raising his distribution to 1.5 kg from 11g, PSR been tagged him with leadership role in conspiracy in which ALL defendants (except cooperators) were acquitted; obstruction (allegedly glaring at a cooperating witness); use of a firearm (acquitted conduct); and crime while on release (the acquitted conspiracy, which was charged as starting in 1992). Although I regard myself as a pretty diligent defense lawyer, I was unaware of what is happening to guys who go to trial and win. Kafkaesque.

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