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:

• Chief Judge Boggs seemed to embrace the government's position that reliance on acquitted conduct for guideline sentencing enhancements was just fine and created no special concerns within the advisroy guideline system.

• Judge Merritt seemed to accept the embrace the defense's position that reliance on acquitted conduct for guideline sentencing enhancements creates serious constitutional problems.

• Judge Sutton seemed eager to conclude that Gall and Kimbrough allowed a district court to adopt any reasonable approach to the consideration of acquitted conduct, though he seemed inclined to expect a district court to explain his or her choice on the record to make sure the outcome is procedurally reasonable.