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June 4, 2008

The friendly themes to be stressed in Sixth Circuit acquitted conduct case

As noted here, I am off to the Sixth Circuit to present an amicus perspective on acquitted conduct enhancements.  (As previously detailed here, late last year the Sixth Circuit ordered en banc review in US v. White, and this afternoon is the scheduled argument. As noted before, together with a terrific group of lawyers from Proskauer Rose working pro bono, I helped put together an amicus brief (discussed here) making mostly statutory arguments about guideline enhancements based on acquitted conduct. 

At oral argument I plan to expand a bit on these points.  More generally, I plan emphasize not just statutory issue, but also structural and practical problems that flow, in my view, from treating acquitted conduct just like convicted conduct under the guidelines.  Later tonight, I hope to be able to report on what happens.

UPDATE:  Though I was surprised a bit that only three members of the en banc court were vocal during oral argument, these three effectively mapped out through their questions the three major possibilities for the post-Booker consideration of acquitted conduct enhancement:

June 4, 2008 at 10:52 AM | Permalink


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Good luck.

Posted by: | Jun 4, 2008 11:06:19 AM

Good luck, Doug. I have a case pending in the Sixth Circuit with an acquitted conduct issue. Please share whatever insights oral argument gives you.

Posted by: Ken Tableman | Jun 4, 2008 2:32:23 PM

Did Judge Merritt's questions reveal how those "constitutional problems" might be remedied? Did anyone on the panel accept your statutory argument w/r/t SRA?

Posted by: Alex | Jun 5, 2008 12:05:47 PM

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