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June 29, 2008

Extended examination of ugliness of acquitted conduct enhancement

The Washington Times has this lengthy piece examining the use of acquitted conduct to enhance federal sentences in a high-profile DC case.  The article is headlined, "A $600 drug deal, 40 years in prison: Acquitted of murder, convicted of drug deal, Antwuan Ball faces a decades-long sentence," and here are snippets:

Jurors acquitted Ball in November 2007 on every count of a massive racketeering, drug conspiracy and murder indictment except a $600, half-ounce, hand-to-hand crack-cocaine deal in Southeast Washington seven years ago. Perhaps thinking his freedom was at hand, Ball cried when the verdicts were read. Indeed, under federal guidelines, he could expect to be released within a few years.

However, federal prosecutors are asking U.S. District Judge Richard W. Roberts to send Ball to prison for 40 years, basing their request partly on charges that were never filed or conduct the jury either rejected outright or was never asked to consider.

Known as acquitted and uncharged conduct sentencing, the practice is raising a sharp question among legal scholars: Should federal judges dole out tougher sentences based on accusations that jurors rejected or never heard during trial?

Accompanying the main story is this side-bar piece headlined "'Relevant conduct' can add to sentences," as well as this remarkable letter from a juror in the Antwuan Ball case sent to the judge due to sentence Mr. Ball.  Here is an excerpt from the juror letter that merits a full read:

As you remember, Judge Roberts, we spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements.  We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail.  If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time.  Conspiracy?  A crew?  With the evidence the prosecutor presented, not one among us could see it. Racketeering?  We dismissed that even more quickly.  No conspiracy shown but more importantly, where was the money?  No big bank accounts.  Mostly old cars.  Small apartments or living with relatives.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.  We, the jury, all took our charge seriously.  We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy.  We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case.

Some related posts on acquitted conduct sentencing enhancements:

June 29, 2008 at 11:39 PM | Permalink


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» One Juror's Thoughts on Acquitted Conduct Sentencing from Simple Justice
The fundamental wrongfulness of sentencing a person based upon acquitted or uncharged crimes has been reared its ugly head with some regularity, but rarely do we get a glimpse of its impact on a participant who is not engaged in the defense. [Read More]

Tracked on Jun 30, 2008 6:27:46 AM

» One Juror's Thoughts on Acquitted Conduct Sentencing from Simple Justice
The fundamental wrongfulness of sentencing a person based upon acquitted or uncharged crimes has been reared its ugly head with some regularity, but rarely do we get a glimpse of its impact on a participant who is not engaged in the defense. [Read More]

Tracked on Jun 30, 2008 7:18:54 AM



When Roberts and Alito were before the Senate seeking confirmation, many senators, mostly liberal ones who were thinking about Roe v. Wade, stressed the importance of following precedent.

There is precedent on the acquitted conduct issue. The Court concluded a little more than ten years ago that taking account of such conduct in sentencing is proper. The vote was 7-2, and one of the dissenters (Kennedy) did not disagree on the merits but merely dissented on the grounds that the case should have been set for full briefing and argument.

Watts was, of course, decided prior to Booker, but the remedial portion of Booker makes it even clearer than before that, now that the guidelines are advisory, it is still proper to resolve sentencing facts by a preponderance of the evidence, which is the historical practice.

If it is important to respect Roe's precedent, why is it less important to respect Watts's?

Posted by: Bill Otis | Jun 30, 2008 9:30:18 AM

"If it is important to respect Roe's precedent, why is it less important to respect Watts's?"

Why is everything conservative/liberal with you? Is it proper or not to take acquitted conduct into account? If yes, present an argument. If no, present an argument. What does Roe v Wade have to do with this?

Posted by: anon | Jun 30, 2008 9:37:02 AM


"Why is everything conservative/liberal with you? Is it proper or not to take acquitted conduct into account? If yes, present an argument. If no, present an argument."

1. Whether the Supreme Court should respect precedent has nothing to do with conservative v. liberal political stances.

2. It is not merely proper for sentencing courts to take account of acquitted conduct, but necessary if we are to preserve a real offense system.

The argument is made in Watts, which can be found here: http://www.law.cornell.edu/supct/html/95-1906.ZPC.html. It can also be found by Googling "watts aquitted conduct."

Posted by: Bill Otis | Jun 30, 2008 10:07:28 AM

Having just read through the Watts opinion, the following excerpt seems apposite here:

We acknowledge a divergence of opinion among the Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically increase the sentence must be based on clear and convincing evidence.

IANAL, and am wondering if there has there been any further case law established that addresses this point? It seems reasonable that there should be limits on the effects of such enhancements, and that even if not enacted by legislation or the Sentencing Commission, such limits could arise from due process considerations.

Posted by: | Jun 30, 2008 10:35:40 AM

Jun 30, 2008 10:35:40 AM:

Do you agree that Watts establishes the propriety of using acquitted conduct at sentencing?

Do you think it was honest for the Washington Times article to go on for 10 computer pages and never once mention that the Supreme Court had already ruled on the issue?

Posted by: Bill Otis | Jun 30, 2008 10:54:24 AM


I agree that Watts appears to establish the procedural validity of using acquitted conduct at sentencing. Whether it is otherwise proper is a different and more difficult question. I can certainly understand the rationale behind the concept, but I haven't thought through fully whether I agree, disagree, or would suggest a moderated approach. For example, should we treat differently objective and subjective factors (e.g. objective as 'a gun was found on his/her person' vs. 'he/she used a gun in furtherance ...'), perhaps requiring a jury to ascertain the latter. Just thinking out loud ...

As to the honesty of the article's author, I'll grant that it would have been a better article to have mentioned the Supreme Court ruling, perhaps as it might have been a better response from you to have mentioned the apparently outstanding question of disproportionate effect called out in Watts. I'm not going to impute intentions in either case.

Do you think that there should be a moderating effect on such enhancements based on the guidelines range for the convicted offense?


Posted by: | Jun 30, 2008 11:19:26 AM


I am not aware of any other sentencing factor that is given only "moderated" weight. In the pre-Guidelines era, judges routinely took account of what they were convinced, by a preponderance of the evidence, the defendant had done (in addition to the offense of conviction). To the best of my knowledge, no case required sentencing courts to give moderated effect to those findings. If you know of such a case, I am absolutely all ears.

We have now largely returned to the pre-Guidelines days: broad discretion for judges, but with the real offense system intact. This was the compromise the remedial part of Booker was all about. The Court could (and in my judgment should) have kept mandatory guidelines but required proof of sentencing facts beyond a reasonable doubt. However, I didn't have a vote, and the Court instead elected to solve the Apprendi/Blakely problem by making the guidelines advisory only, but declining to elevate the traditional standard of proof for sentencing facts.

That being the law, I would not support a general requirement for only moderated use of acquitted conduct.

I might also note that one of the most important aspects of sentencing -- the court's assessment of the defendant's attitude -- is not an offense at all, and can hardly be "proven" BRD or otherwise.
That is, if in the court's view, the defendant is genuinely remorseful and has set about to re-make the way he lives, that should be taken account of in sentencing. If on the other hand the defendant's attitude is that the system can go perform a difficult anatomical act on itself, and that everyone else was to blame for his behavior (usually starting with his mother), that too should be taken account of in sentencing. But neither attitude can be "proven."

I hope this responds to your question. I appreciate your thoughtful tone in dealing with this.

Posted by: Bill Otis | Jun 30, 2008 12:09:31 PM


I appreciate your comments on the relevance of some of the other major sentencing decisions, and your opinions of them. As someone interested in sentencing practice and policy (and reform :), I owe it to myself to more comprehensively understanded these cases and their consolidated effect.

My point on objectivity notwithstanding, I agree that a defendant's demeanor should be considered by the judge as part of his/her discretion in sentencing, as I see far less due process relevance towards attitude than purported criminal behavior and I believe genuine remorse, or lack thereof, to be a reasonable indicator of future behavior. However, I am frustrated that, as with many other sentencing considerations, these analyses tend to simply translate to a matter of more or less months behind bars. (I imagine that last statement could perhaps lead into a more expansive, and probably interesting, dialog about how we punish, but one I would have to reluctantly defer at present - work and all ...)

Thanks - I appreciate the exchange.


Posted by: | Jun 30, 2008 12:30:55 PM

Bill, your posts here attempting to compare *Watts* to *Roe* are truly ridiculous.

As the Court noted in *Booker*, in *US v Watts*, 519 U.S. 148 (1997), the Supreme Court specifically “held that the *Double Jeopardy Clause* permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.” *United States v. Booker*, 543 U.S. 220, 240 (2005). In Booker, the Court further specifically noted that *Watts* did not involve *any* Sixth Amendment arguments. *Booker,* 543 U.S. at 240.

The Court's precedent in *Watts* -- which evaluated the practice of using acquitted conduct at sentencing solely as to whether the practice violated the Double Jeopardy Clause -- therefore, poses absolutely no bar whatsoever to a later conclusion that the practice violates a different constitutional provision.

Posted by: Sentencing Observer | Jun 30, 2008 1:54:22 PM

Sentencing Observer:

Since Watts is ten years old, and Booker is now three and a-half years old, there has been a boatload of time in which defendants could raise other sorts of challenges to the use of acquitted conduct. Can you cite even one case in which such a challenge has succeeded? Can you cite any pre-Guidelines case in which it succeeded?

Defense counsel are not a bunch of ninnies. They went after the Double Jeopary argument because they thought, correctly, that it was their best shot. Everything else will just be a re-hash of what got left on the editing room floor when Watts was being litigated.

Posted by: Bill Otis | Jun 30, 2008 2:57:02 PM

Sentencing Observer:

In the Settles case from the DC Circuit, decided just this last Friday, the Court had this to say:

"Settles argues that the District Court violated the Fifth
and Sixth Amendments to the Constitution by considering
conduct of which he had been acquitted in calculating the
advisory Guidelines range and determining his sentence.
Settles contends in particular that the District Court’s reliance
on acquitted conduct increased his advisory Guidelines range
from 37-46 months to 57-71 months and that the District
Court took that acquitted conduct into account in imposing a
sentence within the advisory Guidelines range.

"As Settles
concedes, however, long-standing precedents of the Supreme
Court and this Court establish that a sentencing judge may
consider uncharged or even acquitted conduct in calculating
an appropriate sentence, so long as that conduct has been
proved by a preponderance of the evidence and the sentence
does not exceed the statutory maximum for the crime of
conviction. See United States v. Watts, 519 U.S. 148, 156-57
(1997); United States v. Brown, 516 F.3d 1047, 1050-51
(D.C. Cir. 2008); United States v. Dorcely, 454 F.3d 366, 371
(D.C. Cir. 2006); United States v. Boney, 977 F.2d 624, 636
(D.C. Cir. 1992); see also Williams v. New York, 337 U.S.
241, 247 (1949). Under those cases, there is no Fifth
Amendment due process problem with this long-standing
sentencing practice.

"As to the Sixth Amendment, moreover,
the District Court’s reliance on acquitted conduct in
calculating the Guidelines range no longer poses a problem
because the post-Booker Guidelines are only advisory. For
Sixth Amendment purposes, the relevant upper sentencing
limit established by the jury’s finding of guilt is thus the
statutory maximum, not the advisory Guidelines maximum
corresponding to the base offense level. And the Supreme
Court has “never doubted the authority of a judge to exercise
broad discretion in imposing a sentence within a statutory
range.” United States v. Booker, 543 U.S. 220, 233 (2005).

"In short, because the conduct in question was proved by a
preponderance of the evidence and because Settles’s sentence
did not exceed the statutory maximum of 10 years, the
District Court’s consideration of acquitted conduct in
sentencing him did not violate the Fifth or Sixth Amendment."

Please note that the Court said that under cases INCLUDING WATTS, "there is no FIFTH AMENDMENT DUE PROCESS problem with this long-standing
sentencing practice" (emphasis added).

Accordingly, the DC Circuit would appear to disagree with your claim that Watts resolved only the Double Jeopardy issue in using acquitted conduct.

If, as Settles holds, there is no Due Process, Double Jeopardy or Sixth Amendment bar to the use of acquitted conduct, what Constitutional provision is it that you think is left? And what post-Watts case supports your view?

Posted by: Bill Otis | Jun 30, 2008 6:54:34 PM

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