« Florida state judge reduces homicide sentence based on "battered spouse syndrome" | Main | Amicus filing in SCOTUS habeas cases creating controversy among death penalty crowd »

November 6, 2009

Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing

The Fourth Circuit today in US v. Grubbs, No. 07-5040 (4th Cir. Nov. 6, 2009) (available here), considers and rejects a number of procedural challenges to a federal sex offense sentence. Here is how the opinion begins:

Jimmie Vance Grubbs pled guilty to six counts of knowingly transporting someone under the age of eighteen in interstate commerce with intent to engage in a sexual activity, in violation of 18 U.S.C. § 2423(a), and six counts of traveling in interstate commerce for the purpose of engaging in a sexual act with a person under the age of eighteen, in violation of 18 U.S.C. § 2423(b).  The district court sentenced Grubbs to 240 months of imprisonment and a life term of supervised release.  On appeal, Grubbs does not contest his convictions, but contends the district court erred in imposing his sentence for three reasons: (1) the district court violated his Sixth Amendment rights by considering uncharged conduct when deciding an appropriate sentence; (2) the district court violated his Fifth Amendment rights by failing to require the Government to prove uncharged conduct by more than a preponderance of the evidence standard; and (3) the district court committed procedural errors in calculating his United States Sentencing Guidelines ("Guidelines") range.  For the reasons that follow, we disagree with Grubbs and affirm the judgment of the district court.

November 6, 2009 at 10:17 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fourth Circuit affirms reliance on uncharged conduct in sex offender sentencing:


They better hurry, these all R panels won't last much longer. With Obama's two NC nominees to the 4th joining the MD and VA nominees, it will be 9 Ds and 5 Rs with 1 more vacancy (SC) to fill.

Posted by: . | Nov 7, 2009 9:36:20 AM

This is a well written opinion that clearly explains how uncharged conduct works at sentencing. The crux of it appears to be here.

". . . In sum, because the Guidelines are now advisory and district judges are empowered to discharge their duties fully in the first instance, it is a logical impossibility for the "tail to wag the dog," as could occur when the Guidelines were mandatory." p14.

It still feels intuitively wrong though. Say a suspect is suspected to two bank robberies, one which the government can prove beyond a reasonable doubt and the other which could probably only be proved by a preponderance of the evidence if at all. The government doesn't want to charge and try the second bank robbery because there would be too much risk of acquittal, which may influence the verdict of the first charge.

So the government decides to only charge and try the first robbery and gets a conviction. Now, at sentencing, it introduces evidence of the second robbery.

Now let's say the statutory max is 20 years and the sentence should be 10 years given all the factors, but based on the uncharged conduct the judge sentences him to 20 years. From the defendant's point of view, he was sentenced equally for each but the government merely by-passed the Constitution on the second preponderance of the evidence charge.

This scenario goes to the maxim that sentencing should promote respect for the law. What does that mean? Fear of the law in the form of deterrence? If that is what it means, it may work, but it wouldn't promote respect for the law otherwise.

Posted by: George | Nov 7, 2009 12:56:03 PM


Or you could simply believe that anytime a convict receives a sentence less than the statutory maximum they have been given a gift.

Posted by: Soronel Haetir | Nov 7, 2009 1:39:16 PM

George --

Do you think a court may properly take into account the defendant's attitude in imposing sentence?

Attitude can hardly be proven BRD, but it's actually quite important to the sentencing decision. A fellow who is genuinely contrite poses much less of a threat to public safety than one who thinks his only mistake was getting caught by the fascist cops.

And if it is proper to sentence based in part on attitude, which cannot be proven in the conventional sense at all, why is it improper to base the sentence in part on other acts, which CAN be proven in the conventional sense?

It has long been accepted, especially by the defense bar, that the sentencing court should consider the whole person. But defense testimony at sentencing, by the mother or sister or what have you, barely even pretends to be proof BRD. It's basically a plea for mercy.

If the whole of the defendant's character can be taken into account at sentencing, whether or not proven BRD, why shouldn't the whole of the defendant's behavior get the same treatment?

Posted by: Bill Otis | Nov 7, 2009 2:02:03 PM

Soronel, nice strawman. You could also say if a defendant (not a convict until after sentencing) is not beheaded or not drawn and quartered he is given a gift.

You are right though that the law permits it. I merely argue that is is intuitively wrong because it permits the government to bypass the Constitution on charges it cannot prove beyond a reasonable doubt.

Posted by: George | Nov 7, 2009 2:09:56 PM

Bill, I'm not sure what you are asking or why. Are you referring to the "respect for the law" factor? That is a legal factor in punishment, along with rehabilitation and public safety. How do the courts consider it? I really don't know. Maybe there isn't any opinion that specifically addresses it and defines what it means.

Posted by: George | Nov 7, 2009 2:17:56 PM

Let me rephrase that.

Bill, are you alluding to "respect for the law"? The four factors if memory serves are respect for the law, deterrence, rehabilitation and public safety. How do the courts consider respect for the law? Is it defined and considered by any SCOTUS opinion in this or any context?

The point is, my scenario, though legally correct, would engender contempt for the law, and we can get a hint of this when jurors are shocked because a judge uses their acquitted conduct in sentencing.

Posted by: George | Nov 7, 2009 2:32:37 PM

George --

Let me try to narrow it down then. Do you think a court, in imposing sentence, may properly take into account the defendant's attitude toward his offense?

Posted by: Bill Otis | Nov 7, 2009 2:36:32 PM

Bill, you are trying the change the subject, but for the sake of clarity, let's say the scenario defendant got a downward departure for taking responsibility on the convicted bank robbery like the case in the opinion. Hopefully that will help refocus the issue in that "respect for the law" is a matter of public policy, not the individual's taking of responsibility.

Posted by: George | Nov 7, 2009 2:47:28 PM

Maybe I should have said "a point downward" for taking responsibility. Isn't a "downward departure" a below guidelines sentence?

Posted by: George | Nov 7, 2009 4:23:03 PM

I agree with Bill. As I have said before, I don't problem with sentencing based upon acquitted conduct. I simply do not see it as "by passing the Constitution". Our system gives judges discretion and so long as the sentence is within that statutory scheme I don't have a problem with it.

As I see it, the acquitted conduct is just a fig leaf. If the judge is a hanging judge he'll give him 20 years no matter what. Introducing the conduct might make the pill go down more easily but it really doesn't matter. I honestly would be shocked if the introduction of acquitted conduct changed the minds of any judge at sentencing. You seem to think George that the sentencing judge is a nuanced sentencing actor and I just don't think he or she is.

Posted by: Daniel | Nov 7, 2009 5:28:14 PM

Daniel, if the judge is able to articulate other factors that justify a reasonable doubling of the sentence, so be it. If a hanging judge can hang without using acquitted conduct, so be it. Under the hypothetical scenario, beyond a reasonable doubt becomes a platitude.

Imagine this public opinion poll question.

"If it were legal for the judge to do so, should the judge double the sentence based on a rumor that is more likely than not true?"

With the heinous crimes, the public may be all for it, but if they thought for a minute they may start to ask themselves, would that mean the judge could double my fine for running a stop sign after I plead guilty just because someone said I did it before? What about speeding? What about a mild spanking of my kid? Could the judge double my punishment for child abuse based on a rumor?

No, I think they would want proof beyond a reasonable doubt of those rumors if it was them about to be hung. The difference is these crimes are so relatively trivial that the prosecutor won't go to the trouble of introducing unprovable beyond a reasonable doubt enhancement factors, so the People have little to worry about, but if prosecutors started using this in more normal everyday crimes and infractions, you can bet there would be a backlash.

Posted by: George | Nov 7, 2009 7:13:31 PM


Except those same people when forced to think about it more than superficially would want the judge to be able to use other factors when crafting a sentence that cannot be proven BRD. The more I look at this the more I see the wisdom of Aprendi of providing latitude within a statutory sentencing range.

Now, I agree that to change the statutory range is another matter, which was the issue in Aprendi.

Posted by: Soronel Haetir | Nov 7, 2009 10:28:46 PM

George --

I'm not changing the subject. If a judge properly may adjust the sentence up or down, based on his necessarily subjective belief about the defendant's attitude, then the principle is established that the sentence may based on factors not proven beyond a reasonable doubt. And that is THE subject here, not a change of subject.

So I'll ask again: Do you think a court, in imposing sentence, may properly take into account the defendant's attitude toward his offense?

Posted by: Bill Otis | Nov 7, 2009 10:39:12 PM

Soronel and Bill, I get the legal reasoning behind the opinion and understand the practical utility of it, but still want to know how you think the public would answer the poll question.

"If it were legal for the judge to do so, should the judge double a sentence based on a rumor that is more likely than not true?"

I don't think the majority would answer yes because it would clash with their understanding of the Constitution. On the other hand, maybe they would be all for it and wouldn't think it disrespects the Constitution and beyond a reasonable doubt at all. Then there is always the possibility the majority would prefer to do away with beyond a reasonable doubt altogether. That wouldn't be a big step from here.

Posted by: George | Nov 7, 2009 11:44:03 PM


I believe the word "rumor" biases your question enough that it will not produce answers indicative of what people actually believe about factors that should go into crafting a sentence. Rumor implies a lack of proof that is incompatible with even a preponderance standard.

How about this alternative question: When crafting a criminal sentence should a judge consider circumstances that cannot be proven beyond reasonable doubt?

I am also interested in your policy answer to Bill Otis regarding the defendant's attitude towards the offense. Attitude is generally subjective and not even subject to a preponderance standard yet is considered a valid factor in sentence determination.

Posted by: Soronel Haetir | Nov 8, 2009 1:11:19 AM

Soronel, OK, maybe "rumor" is biased even though it was qualified with the definition of the preponderance of the evidence, but your proposed question including "the circumstances" does not make clear the question pertains to the presumption of guilt of a unproved beyond a reasonable doubt crime. That is why I don't think the defendant's attitude is relevant. There is no constitutional right to a bad attitude during sentencing (leaving for when it is the topic how much influence that should have).

How would this question work?

If it were legal to do so, should a judge double a criminal sentence based solely on a crime that cannot be proven beyond a reasonable doubt?

Does that question cut to the core? I still do not think the majority would approve and they would think doing so disrespects the Constitution.

If the question were more like the following, I think almost everyone would disapprove because it could potentially apply to themselves at some time.

"If it were legal to do so, should a traffic court judge double a fine based solely on evidence of another traffic violation that is more likely than not true (not beyond a reasonable doubt)?"

I don't think the People would accept that and would think it disrespects the law, and therefore the traffic court that did that would not fulfill the obligation that sentencing should promote respect for the law.

Posted by: George | Nov 8, 2009 11:49:06 AM

George --

Soronel just put it as well as I could have, so I adopt his response. And like him, I would be interested in your answer to the question I have asked several times: Do you think a court, in imposing sentence, may properly take into account the defendant's attitude toward his offense?

Posted by: Bill Otis | Nov 8, 2009 11:50:30 AM


Your traffic court example would likely run afoul of Aprendi. AFAIK traffic fines are generally set by statute at a specific amount.

We are talking about a different undertaking here, determining where inside a statutory range a sentence should fall.

I am not certain of it, but I am pretty sure that even jury sentencing states like Texas do not require proof BRD with regard to factors that go into a sentence. And I've seen cases where the statutory range was straight probation to LWOP.

I don't have proof (even preponderance) that people have more problems with Aprendi like situations but I do believe that is a useful line. Anywhere within the statutory range is fair game but to go higher you need something that's been proven BRD or admitted to (which amounts to the same thing).

Posted by: Soronel Haetir | Nov 8, 2009 12:28:47 PM

Soronel, again I understand the reasoning and understand the law, and know that traffic court is not a perfect example, which is the reason for qualifying it with ""If it were legal to do so."

But I think the traffic court example makes plain that the People would not approve if they were aware of it and if it were an everyday occurrence applied to everyday people. This is a policy argument, not a legal one as the law now stands, even though the sentencing question goes to "should promote respect for the law." Did Aprendi address this? Even if not, it is not likely the defense bar or defense counsel would conduct a scientific poll for evidence in support. How else could it be supported? Again, as the traffic court example tried to demonstrate, it seems intuitively wrong even if not legally wrong and I think the great majority of people would say NO to that traffic court.

Posted by: George | Nov 8, 2009 1:11:34 PM


You keep ducking what factors /should/ go into crafting a sentence. I would in fact be shocked if people on the whole didn't want things like attitude towards the offense or even the court taken into account.

Let's take a different item. You have someone convicted on one count. You have proof (let's stipulate BRD) that the same person committed the act some other time and the statute of limitations has run so there is no possibility of getting a conviction for it. Do you really think people wouldn't want the sentence for the convicted offense to be adjusted based on the unconvictable conduct?

Now, lower that example to clear and convincing, you probably lose some folks, but I would be surprised if you don't still have a strong majority. Even at preponderance it would not surprise me if you still have a majority.

Now, if you drop the SOL issue it would not surprise me if the numbers are lower (I believe the fact of getting away with something would make the number bump somewhat higher for the SOL case).

Mostly I see this as a difference between abstract and concrete examples. If you put the abstract concepts in front of people they will likely agree with you. However if you start illustrating examples of what actually happens I believe that would shift to much greater support.

Posted by: Soronel Haetir | Nov 8, 2009 1:43:49 PM

The question in Aprendi was limited to what statutory range applies. Aprendi pled to a count that had a 10 year maximum sentence. Based on a factor found by the judge using a preponderance standard he was sentenced to 15 years.

The SCOTUS ruling in Aprendi said that in order to sentence above the statutory maximum of the crime of conviction there had to be either an admission or jury finding BRD as to some additional fact. Aprendi has little or nothing to do with crafting a sentence within a statutory range.

Posted by: Soronel Haetir | Nov 8, 2009 1:49:21 PM

Soronel, your statutes of limitations example is a good one. But we would have to go into the reasoning behind the statutes of limitations, which is largely forgotten now, and how they were enacted in large part because after so much time passes it becomes so difficult to prove innocence. Memories fade, evidence gets lost, alibis are harder if not impossible to prove. No one cares about any of that much anymore, so it is a good example you use. But the question is if that old case should be used, not if we would like it to be used.

Let's try some other concrete examples. Say the code requires proof beyond a reasonable doubt for everything. Parking violations, traffic tickets, walking dogs without a leash, everything must be proven beyond a reasonable doubt. Now say you or Daniel or Bill get a ticket for no dog license and it is proved beyond a reasonable doubt to be true. Now the judge says, "Oh, by the way, we have this parking ticket. There is no proof beyond a reasonable doubt, but I think it is probably true so I'm going to double your no dog license fine."

You or Daniel or Bill might say, "OK, that is the law. I have to accept it." But would you respect it? I'm arguing there is a difference between respecting the law because it is the law and not respecting the law because it seems unfair and unjust. Most people, despite what the law is, would likely resent that what was once required to be proven beyond a reasonable doubt suddenly need only be proven by a preponderance of the evidence. If there was a parking ticket, why not charge it and prove it beyond a reasonable doubt as the law required? Why sneak it in?

This is why I think most people would disapprove of the prosecutor's maneuvers in the bank robbery hypothetical if they knew about it.

Maybe this is a question better suited for a sociology blog.

Posted by: George | Nov 8, 2009 2:39:09 PM

George --

Suppose the question were put in more neutral language: "Do you think a judge, when imposing sentence in a criminal case, should take account of the defendant's entire life and behavior, if those things are proved by most of the relevant evidence but not beyond a reasonable doubt?"

Are you as sure about what the public response would be to that?

Or how about this: "Would you have more or less respect for the law if the judge, in sentencing a criminal, were required to ignore facts about the defendant's overall behavior that were proved by most of the relevant evidence but not beyond a reasonable doubt?"

And then, for the fourth time, here's one for you that, as Soronel notes, you keep dodging: Do you think a court, in imposing sentence, may properly take into account the defendant's attitude toward his offense?

Posted by: Bill Otis | Nov 8, 2009 8:09:46 PM

Bill, that attitude question is asked and answered. Did you miss it? And all of your proposed questions miss the mark. The question is if a judge can presume the guilt of a crime more likely than not. The question is not if the judge can consider various circumstances that never need proved beyond a reasonable doubt. You keep trying to equate a bad attitude with the constitutional right that a crime must be proven beyond a reasonable doubt. Why do you keep trying to dodge it?

We're going around in circles and only a well done scientific poll could start to resolve it. A conservative poll would try to phrase the question like you did. It needs to be designed by a constitutional scholar or someone that can pose the question impartially. A well done poll could determine if people think a judge should use preponderance of the evidence as enough proof of guilt of a crime without violating The People's civics class memories of beyond a reasonable doubt. I think The People would be shocked but they could be very happy with it.

Tell us this: would you like your fine doubled in the hypothetical given? Would you think it fair a just?

Posted by: George | Nov 8, 2009 9:02:30 PM

Bill, one last jab at it. No, the judge cannot consider attitude if the judge claims that bad attitude was contempt of court if contempt of court was not proven beyond a reasonable doubt (assuming it need be). Does that help?

Now tell us this: would you like your dog license fine doubled in the hypothetical given? Would you think it fair and just? Do you think it would promote respect for the law?

Posted by: George | Nov 8, 2009 11:32:08 PM

i have to say i think it's CRIMINAL to try and use something you KNEW you couldn't prove and so never charged in the follow up sentence consideration.

sorry if you DIDNT' THINK you could prove it. Well guess what maybe that means he DIDNT' DO IT

and last time i looked UNDER OUR CONSTITUTION your supposed to be INNOCENT UNTIL PROVEN GUILTY!

Posted by: rodsmith3510 | Nov 9, 2009 8:47:26 PM

this may not be the correct place to ask his question but, does anybody know how i can find out what prison jimmie v grubbs is in? i have spent hours online looking and cannot get an answer. thanks, steve

Posted by: steve | Dec 16, 2013 3:36:21 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB