DC Circuit affirms (but questions fairness of) acquitted conduct enhancement

The DC Circuit this morning in US v. Settles, No. 06-3090 (DC Cir. June 27, 2008) (available here), affirms a within-guideline sentence that included an acquitted conduct sentencing enhancement under the guidelines.  Though rejecting Fifth and Sixth Amendment challenges, the panel has this to say about the apparent unfairness of such sentence enhancements:

To be sure, we understand why defendants find it unfair for district courts to rely on acquitted conduct when imposing a sentence; and we know that defendants find it unfair even when acquitted conduct is used only to calculate an advisory Guidelines range because most district judges still give significant weight to the advisory Guidelines when imposing a sentence.  At his sentencing, Settles himself cogently explained the point directly to the court: “I just feel as though, you know, that that’s not right. That I should get punished for something that the jury and my peers, they found me not guilty.” May 19 Tr. at 29.  Many judges and commentators have similarly argued that using acquitted conduct to increase a defendant’s sentence undermines respect for the law and the jury system....

For those reasons, Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct.  But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.

That said, even though district judges are not required to discount acquitted conduct, the Booker-Rita-Kimbrough-Gall line of cases may allow district judges to discount acquitted conduct in particular cases – that is, to vary downward from the advisory Guidelines range when the district judges do not find the use of acquitted conduct appropriate....  Because the District Court here chose not to vary below the advisory Guidelines range, however, we need not and do not decide that question.

Notably, the defendant in Settles does not appear to have challenged his sentence on reasonableness grounds.  In light of Gall's statement about the importance of "promot[ing]e the perception of fair sentencing," a reasonableness challenge should have more juice than the standard (and frequently rejected) constitutional complaints.