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December 24, 2008

Sixth Circuit finally issue en banc opinion on acquitted conduct enhancements

Providing a last-minute holiday present, the Sixth Circuit today finally handed down its long awaited en banc opinion in US v. White, in which enhancements based on acquitted conduct were being subject to a variety of challenges.  I have not yet had a chance to consume the particulars, but the outcome is disappointing (but not surprising) for those troubled by such enhancements in the wake of Blakely and Booker.   Because I have too many reactions to the opinion before even reading it, let me here just report on how the majority and dissenting opinions start.

Per Judge Cook writing a short opinion for nine Sixth Circuit judges:

This is a sentencing appeal.  When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White’s offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.

Per Judge Merritt writing a long opinion for the six Sixth Circuit judges dissenting:

The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years.  There are at least two related but independently sufficient reasons to reverse White’s sentence.  First, the reasonableness — and thus legality — of White’s sentence depends entirely on the presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment.  Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense.

My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court’s opinion in United States v. Watts, 519 U.S. 148 (1997). The majority also misunderstands the Supreme Court’s Apprendi-Blakely-Bookerline of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.

Because I was involved as an amicus in this case, I may need the entire holiday season (and lots of egg nog) to fully consume and then (soberly?) comment on the Sixth Circuit's work in White.  And though I do not like getting coal in my holiday stockings, I am grateful that this opinion was handed down when I am looking for excuses to avoid grading my Fall exams.

Needless to say, lots of White commentary is likely to follow.  In the meantime, I encourage interested readers to comment not only on the substance of the White opinion, but also on its conspicuous holiday timing and its potential as a cert vehicle.

December 24, 2008 at 11:13 AM | Permalink


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Here's another way to avoid those finals. Go outside and dig up some Framers and tell them they had one of history's greatest revolutions in the name of opposition to arbitrary government so that a jury could declare you not guilty of offenses for which you then spend 14 years in prison. Save some of that egg nog for them.

Posted by: Michael Connelly | Dec 24, 2008 12:49:25 PM

I have only given this a skim, but the majority and dissent seem on different wavelengths. The majority seems consistent with the other circuits to have dealt with the issue, while the dissent latches onto to the as-applied challenge possibility to unconstitutional sentences as suggested in Scalia's Rita concurrence. Judge Merritt also engages in the statutory analysis you mentioned on here previously. The majority seems to disregard all of that and say it is not relevant. I suppose that leaves both those arguments (as-applied challenges to unconstitutional sentences under Booker/Blakely/Apprendi) and the statutory challenges to acquitted conduct sentencing. The majority just seemed to not address those claims.

My other comment is that I'm entirely not surprised by the analysis after having been exposed to other relatively thoughtful engagements with this question, notably Judge Kavanaugh's opinion for the D.C. Circuit. In light of that -- and I'm really not trying to be snarky -- but the majority opinion seems like relatively weak judicial craftsmanship. What's with the opening: "This is a sentencing case"? I assume that was not in contention?

Also, the majority makes this straightforward point, and then finishes it with what strikes me as a bizarre reference, but maybe others like it:

"The dissent also errs in saying that defendant is being sentenced to additional years “for three crimes the jury in its verdict said he did not commit.” The jury verdict says no such thing. It says something very different—that the conduct had not been proved beyond a reasonable doubt. Lawyers have long recognized the distinction between proof beyond a reasonable doubt—the standard for criminal conviction—and proof by a preponderance of the evidence—the standard for civil trials. Laypersons have become familiar with the distinction from the pair of O.J. Simpson trials, in which one jury found the crime not proved beyond a reasonable doubt, but another jury found civil liability by a preponderance of the evidence."

Why bring OJ into this? Anyway, weird stuff from the Sixth Circuit is hardly a surprise.

Posted by: Applekeys | Dec 24, 2008 1:21:53 PM

Prof. Berman, do you have a link to your amicus brief?

I've done some amount of work on the Apprendi line of cases, and I'm inclined to believe that the dissent doesn't have a leg to stand on and is just spouting off based on emotion... but you've probably thought about these issues more than I have and if there's actually a good argument to be made in support of the dissent, I'm very curious as to what it is.

The arguments favoring the majority are familiar.

* Apprendi-Booker-Blakely constitutionalizes only the statutory maximum. If you're convicted of a crime, and the statutory maximum is 30 years, you can be sent away for 30 years without running afoul of the constitution, so long as all elements of the crime necessary to support the statutory maximum are proven to a jury beyond a reasonable doubt (or admitted by the defendant)

* An acquittal is not a judgment of innocence. If you suppose that reasonable doubt means something like 90% certainty, then an acquittal is essentially a judgment that there's a less than 90% chance that the defendant was guilty and therefore insufficient proof to send him away.

* Judicial discretion operates in the range between the statutory maximum and the statutory minimum. If the judge is trying to pick a sentence between 0 and 30 years, and he's allowed to consider lots of stuff not subject to a reasonable doubt standard (troubled or privileged childhood, victim statements, prior good deeds, motive for the crime, whether the defendant has a family to support, whether the defendant is dangerous to his family, remorse, etc.), it's hard to draw a principled distinction between those things and information showing that there's a strong (though less than 90%) chance that the defendant committed other crimes.

* Again, Apprendi-Blakely-Booker protects the defendant by ensuring that he'll never get more than the statutory maximum for the crime of which he was duly convicted. If you're acquitted of ten murders, and then you're convicted of passing a bad check, and passing a bad check carries a statutory maximum of 2 years, you will not get more than 2 years in prison, no matter how certain the judge is that you're also a murderer.

* People who don't like results like those in this case should either push for lower statutory maximums, legislation prohibiting consideration of acquitted conduct (see dissent fn. 5), or new judges who think that an acquittal should be treated for legal purposes like an affirmative judgment that the person is innocent.

The arguments on the other side, as far as I know, are largely based on emotion. If there's something good that I've missed, I'm genuinely curious as to what it is.

Posted by: | Dec 24, 2008 3:14:02 PM

I've done some amount of work on the Apprendi line of cases

I mean that I've done lots of sentencing work since 2000, not that I've worked on the actual Supreme Court cases...

...not that anyone cares

Posted by: Dec 24, 2008 3:14:02 PM | Dec 24, 2008 3:49:58 PM


(1) I think the opinion is quite good. It's fairly straightforward and not at all flashy. I much prefer the style to that of many other judges.

(2) The OJ reference illustrates the point nicely. I don't think it's weird.

(3) "This is a sentencing case" is a bit odd. A good amount of judges start their opinions similarly ("This is a(n) ___ case.") and I don't know why, but for some reason it's caught on with a few. Maybe it's meant to help people doing research on Westlaw.

Posted by: | Dec 24, 2008 3:55:38 PM

The link to the amicus brief is here: http://sentencing.typepad.com/sentencing_law_and_policy/files/WhiteAmicusBrief.pdf

Like I said above, the majority and dissent seem to be arguing past each other. The dissent clearly is relying on emotion (it is a dissent), and I agree that, in line with the 7th and DC circuits, the main Watts/Booker point you make and the majority holds is right:

That with advisory guidelines (Booker), judges can still find facts by a preponderance (Watts), which the guidelines at times tell judges they must do. I do appreciate that the majority points out that judges can refuse to apply the guidelines incorporating acquitted conduct can be disregarded on policy grounds (Kimbrough).

But anyway, like I said, I take the dissent to (largely) be making two different points: (1) the statutory argument that Prof. Berman's brief makes, and (2) an as-applied challenge per Scalia's Rita concurrence. See http://www.law.cornell.edu/supct/html/06-5754.ZC1.html

The majority's response to these two arguments is in a footnote:

"1 We focus our discussion on the single question the panel urged the court to review en banc: whether the district court violated White’s Sixth Amendment right to trial by jury by relying on acquitted conduct for sentencing. The panel did not believe the other issues raised by White justified reversal of the judgment below and we agree."

This is a bit ambiguous. Maybe it is just saying they were waived; maybe it was also saying the as-applied argument per Scalia and the statutory one per Prof. Berman are also losers, but there is no engaged analysis with those two arguments. And maybe these arguments were waived. But they seem to be the same ones the dissent relied on, and do seem to me at least worth engaging with, though I haven't studied the matter. It's at least arguable because the majority sort of just said they were waived or dismissed out of hand that they appear to be available to be made in a future case. So Prof. Berman's statutory argument could still carry the day in the Sixth, it seems like. But I don't know.

Otherwise I do agree with you, that the core Booker/Watts argument holding by the majority is probably right and is definitely in line with other circuits like the 7th and DC Circuits. The rest of it I kind of just point to in that I don't know what to do with it. Presumably if the Supreme Court granted cert all these arguments could be dealt with. Other than waiver, I'm not sure why the majority didn't engage with those (even to say they don't carry the day), but the footnote seems to imply that the majority didn't think they would work.

Anyway, as I said, the majority and dissent seemed on very different wavelengths.

Posted by: Applekeys | Dec 24, 2008 4:52:00 PM

To beat a dead horse, here's the relevant language from Scalia's concurrence in Rita re: as-applied challenges. I don't know what the state of the Sixth Circuit's jurisprudence is regarding these, but my sense is that, like with most appellate courts, those issues get buried and they therefore haven't addressed it properly. To me, this analysis by Scalia seems unquestionably right (and would help White here):

"The Sixth Amendment requires that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 543 U. S., at 244. Two hypotheticals will suffice to reveal why the notion of excessive sentences within the statutory range, and the ability of appellate courts to reverse such sentences, inexorably produces, in violation of the Sixth Amendment , sentences whose legality is premised on a judge’s finding some fact (or combination of facts) by a preponderance of the evidence.


" Second, consider the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts. For example, the base offense level for robbery under the Guidelines is 20, United States Sentencing Commission, Guidelines Manual §2B3.1(a) (Nov. 2006), which, if the defendant has a criminal history of I, corresponds to an advisory range of 33–41 months, id., ch. 5, pt. A, Sentencing Table. If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, §§2B3.1(b)(2), (3), (7), producing an advisory range of 235–293 months, id., ch. 5, pt. A, Sentencing Table. When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive.

" These hypotheticals are stylized ways of illustrating the basic problem with a system in which district courts lack full discretion to sentence within the statutory range. Under such a system, for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment . Appellate courts’ excessiveness review will explicitly or implicitly accept those judge-found facts as justifying sentences that would otherwise be unlawful. The only difference between this system and the pre-Booker mandatory Guidelines is that the maximum sentence based on the jury verdict or guilty plea was specified under the latter but must be established by appellate courts, in case-by-case fashion, under the former. This is, if anything, an additional constitutional disease, not a constitutional cure."

In other words, in White, had the district judge not used White's acquitted conduct to bump up his guidelines range, the sentence he received would likely have been reversed on appeal as too strict of an above-guidelines sentence because it was not based on any facts to support it. So in that way substantive reasonableness review creates a Sixth Amendment problem, and the only justification for the sentence he did get was a judge found fact. Now, you can say this is just the natural result of Booker-land (and I don't think Scalia has five votes for this at the Supreme Court), but I guess my beef with the majority is that they did not engage with this argument at all.

Posted by: Applekeys | Dec 24, 2008 5:08:21 PM

The ultimate fact the court found for enhancement was not that the crimes were committed under a preponderance of the evidence standard. No, the ultimate fact the majority appears to agree with is that the jury almost found him guilty of those crimes beyond a reasonable doubt. Fact-finding as a type of mind-reading. That is a sort of Scotch "guilty but not proven" standard. We don't have that, and if England had it during the revolution, or if our Founders knew the Scotch had it, our Founders flatly rejected it.

The real issue is respect for the jury and the foundations of our law.

Posted by: George | Dec 24, 2008 7:20:13 PM

George, is there a part of the opinion or some other source that supports your statement that "ultimate fact the court found for enhancement was not that the crimes were committed under a preponderance of the evidence standard. No, the ultimate fact the majority appears to agree with is that the jury almost found him guilty of those crimes beyond a reasonable doubt."?

Posted by: | Dec 24, 2008 8:30:14 PM

Maybe defense lawyers should start asking that the verdict sheet provide three alternatives for a jury to consider, guilt proven, guilt not proven, innocent.

The def would not be punished if the verdict is not proven or innocent. And if the verdict is innocent, then the alleged conduct could not be used in any way thereafter.

bruce cunningham

Posted by: | Dec 24, 2008 9:28:32 PM

That's an interesting proposal, Bruce. How would you instruct the jury about which box to check?

"If you find that all elements of the crime have been proven beyond a reasonable doubt, then you should check 'guilt proven.' If not, you should not check that box..."

What goes next?

Posted by: anonymous | Dec 24, 2008 10:42:06 PM

8:30:14 PM, the reference to O.J. seems to imply that. Frankly, though, I should read the opinion and the brief. Been too busy so far.

Maybe not on point, but this might be interesting, especially since Sealfon was decided on res judicata grounds and not double jeopardy.

The guiding principle is that a judgment in a criminal case conclusively implies the existence of facts necessary to the rendition of the judgment and the nonexistence of facts that would have prevented its rendition. They cannot be relitigated between the parties. (Sealfon v. United States, 332 U.S. 575 [68 S.Ct. 237, 92 L.Ed. 180]; Harris v. State, 193 Ga. 109 [17 S.E.2d 573, 147 A.L.R. 980]; United States v. DeAngelo (3d Circuit), 138 F.2d 466; Yawn v. United States, (5th Circuit), 244 F.2d 235; Vaughn v. State, 83 Ga.App. 124 [62 S.E.2d 573]; United States v. Simon (3d Circuit), 225 F.2d 260.)

Posted by: | Dec 24, 2008 11:03:15 PM

I'm not wild about either opinion. (The dissent is kind of mind-blowing. I can see how the dissenters could have written a concurrence urging the SCt to take up the issue. But their argument that the dct should be reversed based on extant law is extraordinarily weak -- as illustrated by their reliance on dissenting and concurring Supreme Court opinions.)

There are several very distinct analytical issues.

I. Does using acquitted conduct in applying advisory USSG violate double jeopardy?

Answer: Definitately not. See Watts.

II. Does using acquitted conduct in applying advisory USSG violate 6A right to trial by jury?

Answer: Almost definitely not.

A) The Apprendi right only applies to fact-finding that increases the maximum allowable punishment. That is not the case here. So in order to fit this enhancement into Apprendi, you need to argue that, within a discretionary system, judge-found facts which make the difference between a reasonable and an unreasonable sentence are themselves subject to Apprendi. But that us implicitly rejected by the remedy chosen in Booker -- because it was obvious in Booker that all kinds of facts not found by a jury would lead to vast differences in the advisory sentence. To get around that, you have to argue either that (1) 6A treats jury acquittals differently than facts not submitted to a jury -- but that's really a double jeopardy question (which is why we can apply an extant body of law to issues such as jury-finding by separate sovereigns, lesser includeds, etc etc); or (2) that some enhancements will be so big that the ordinary Apprendi rule doesn't apply (which is a different point than the dissent makes; creates a tremendous line-drawing problem; and is implicitly rejected by the Booker remedy.)

III. Does using acquitted conduct make a sentence unreasonable under Rita?

Answer: Probably not, give advisory Guidelines' requirement. Nonetheless, this is the most illuminating way to approach the issue. For instance, suppose that the enhancing acts were well proven against this defendant (agreement to rob bank; co-conspirators did the shooting), but the mens rea was not (not foreseeable that the shooting would result.) Even if mens rea proof of forseeable consequences fell short of what's required for conviction (Beyond Reasonable Doubt), you might think that there was enough evidence of this being foreseeable that it was fair to hold this Def somewhat responsible at sentencing -- particularly since sentencing considerations (unlike conviction considerations) pay more attention to the effect a crime has on the victims -- a change from the conviction-phase's almost exclusive focus on the defendant's acts.

Just my two cents.

Posted by: A reader | Dec 25, 2008 11:34:02 AM


the instruction for the third box could be, "If after considering all the evidence presented you believe that in fact the defendant did not commit the offense alleged, you should check the box marked "innocent."

Twenty five years ago I tried a murder case in which the defendant was found not guilty. Afterwards, a juror told me "we thought he probably did it but there wasn't enough evidence to stomp a bug." So the verdict would be guilt not proven.

Compare that with the last bench trial I did of a mayor charged with entering into a contract which personally benefitted him and, before dismissing the case at the end of the state's evidence the judge said, "Mr. DA, I will sit here as long as you want me to listening to evidence, but this case ain't going no where." In that case the verdict would be "innocent."

Bruce Cunningham

Posted by: | Dec 25, 2008 1:13:54 PM

Bruce, your idea is great. but i think there could be some major problems with it as well. say guilty and Innocent is 50/50 (just play along with me i know its wrong). I believe it would come out with 50% guilty, 40% guilt not proven, and only 10% innocent in verdicts. Why? Because people are not charged with a crime unless there is evidence the person had some connection to the crime or victim to begin with, maybe wrong place at the wrong time, had an issue with the victim, etc etc. It would be almost impossible to find someone completely innocent of a crime if jurors had an option to label them something in between guilt or innocent. Then they would have that guilt not proven hang over their heads the next time they appear in court.

It would also set up a procedural use of guilt not proven verdicts to be used in a systemic way in any future verdicts.

It would also give the prosecution another option in proceeding with a weak case "We'll get him next time and slam it to him with the enhancement". They can do that now, but its not systemic and fool proof.

I originally looked at "acquitted conduct enhancements" as a way to skirt around the constitution with double jeopardy. But after reading the comments I'm inclined now to support its use.

Where i see the problem though is in "judge-found facts". Its a concept that puzzles me. How is it humanly possible to be completely objective with acquitted conduct after sitting through a trail were you find out every character defect the guilty has and details of a crime he just committed? I think the solution could be with a appellate court type setting. The judge puts together a pack of information for every "acquitted conduct" (or hearsay) enhancement . The judges would then review the information without any knowledge of the current case and determine if the enhancement is appropriate.

Of course I am no lawyer or professor. Its just my peon opinion.

Posted by: Mark | Dec 27, 2008 4:57:24 PM

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