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August 8, 2011

Notable Eighth Circuit rejection of government sentencing appeal based on "convicted conduct"

As regular readers know, the Justice Department frequently asks (and often succeeds in getting) federal judges to enhance sentences based on "acquitted conduct" after a jury has rejected some aspects of the prosecution's criminal charges.  Today, in US v. Renner, No. 10-2502 (8th Cir. Aug. 8, 2011) (available here), an Eighth Circuit panel rejects a government appeal when the sentencing shoe ended up on the other foot because the sentencing judge in a sense reduce a sentence based on "convicted conduct."  Here are the details from the start and end of the Renner opinion:

A jury found Steven Mark Renner guilty of four counts of tax evasion, in violation of 18 U.S.C. §7201, and the district cour2 sentenced him to 18 months’ imprisonment.  Renner appeals his convictions, arguing that the government constructively amended the indictment through the evidence presented at trial; the instructions erroneously defined “taxable income” and “good faith”; and the evidence was insufficient to support his convictions.  The United States appeals Renner’s sentence, contending that the district court erroneously relied on a fact rejected by the jury in imposing a sentence below the applicable Sentencing Guidelines range.  We affirm....

The government argues that the case must be remanded for resentencing because the district court abused its discretion as a matter of law, and thereby imposed an unreasonably lenient sentence, by granting a downwards variance from the Advisory Guidelines range of 41 to 51 months based on a fact -- good-faith reliance upon expert advice -- considered and rejected by the jury....

It is ...“improper for the judge in sentencing to rely on facts directly inconsistent with those found by the jury beyond a reasonable doubt.” United States v. Bertling, 611 F.3d 477, 481 (8th Cir. 2010) (holding that the non-contradiction principle survived United States v. Booker, 543 U.S. 220 (2005)). Although a close question is presented, we believe the district court’s sentence was not based on facts that contravened the jury’s verdict. From the sentencing transcript it is clear that the district court fully accepted the jury’s rejection of the good-faith defense, and the district court did not find otherwise.  Rather, among the factors considered, the district court relied on the fact that Renner did consult with professionals, a fact the court believed distinguished Renner from other tax evaders who made no effort whatsoever to seek professional advice.  The district court was entitled to consider that Renner at least consulted tax professionals, even if the jury did not believe that Renner met all of the requirements for a good-faith defense.

Our review of the sentencing transcript convinces us that the district court did not commit a procedural error, and that the sentence was substantively reasonable.

August 8, 2011 at 06:13 PM | Permalink


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Love it!

but what the judge should have done was this!

"listen here you TWO-FACED asshole....every EVERY EVERY time i've UPPED a sentence under your requests BECASUE of either UNCHARGED or UNCONVICTED conduct you NEVER SAID A DAMN WORD!"

so you will now DROP YOUR APPEAL or i will lock your TWO-FACED ASS UP!

Posted by: rodsmith | Aug 9, 2011 1:35:31 AM

hmm no comments from the lawyers here? guess that means you can't find any way to disagree with what i said should have happened when this two-faced DA started his criminal stupidity!

Posted by: rodsmith | Aug 12, 2011 2:09:55 AM

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