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March 20, 2014

Notable follow-up thoughts on acquitted conduct and the sentencing of Antwuan Ball

I am pleased to see that my discussion of the Antwuan Ball case in this recent post titled "DC Circuit gives disconcertingly short-shrift to Antwuan Ball's many significant sentencing claims," has now generated a pair of thoughtful posts at The Volokh Conspiracy:

Paul Cassell got the ball rolling via this post titled "Should a drug dealer acquitted of running a drug ring be sentenced for running a drug ring?", which ends with this paragraph:

In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.

Will Baude chimed in via this post titled "The real constitutional problem with Antwuan Ball’s sentence," which concludes with these thoughts:

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.”  He then reiterated this point in Gall.  (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)

This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).

March 20, 2014 at 12:01 PM | Permalink


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I agree with my friend and former colleague at EDVA Paul Cassell.

In response to my other friend, Will Baude, noting that the SCOTUS did not reject Justice Scalia's special concurrence in Rita: That's true, but it didn't accept it either. The concurrence was signed by only one other Justice, although, obviously, any of them could have joined. One would think that's a decently good indication that the Scalia analysis commands exactly two votes.

Most tellingly, and unfortunately from the lovely Mr. Ball's point of view, the majority opinion in Rita was written by Justice Breyer, who also wrote the majority opinion in the remedial portion of Booker that expressly rejected adopting the BRD and/or jury determination standard for finding sentencing facts.

On that evidence, I'll renew my offer to bet that Ball does not get this overturned in the Supreme Court.

Posted by: Bill Otis | Mar 20, 2014 3:20:49 PM

Let's translate this to its most fundamental brushing aside:

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of" [beyond a reasonable doubt because some judges are smarter than some juries and when that happens our balance of powers as exercised by the people can go take a dump].

On the other hand, there are very rare occasions when a judge will disagree with and overturn a guilty verdict. Does that balance out?

Posted by: George | Mar 20, 2014 4:28:18 PM

Bill, I agree with you here. With one small caveat

"I'll renew my offer to bet that Ball does not get this overturned in the Supreme Court."

I think it will be overturned someday, but it is not likely to be overturned by the current Court. Stare Decisis is a strangely fickle thing.

Posted by: Skeptical | Mar 20, 2014 4:30:48 PM

Correct me if I'm wrong, but didn't Justice Scalia make this point in the context of arguing against substantive reasonableness review? In that case, there wouldn't even be two votes to overturn Mr. Ball's sentence, since those Justices would instead vote to abolish substantive reasonableness review while still upholding the sentence.

Posted by: Curious | Mar 20, 2014 5:43:58 PM

Is there anyone here who believes that Al Capone's paper work gotcha, malum prohibitum of not paying taxes should not have stood in for his ordering the St.Valentine's Day Massacre and hundreds of other murders, that substantive reasonableness would have protected the constitution and made the public better off, because their rights would be protected if they ever went to a criminal trial?

Posted by: Supremacy Claus | Mar 20, 2014 6:38:14 PM

well SC I do. Sorry doing the wrong thing even for the RIGHT reason is still WRONG!

Plus of course it became binding presedent they have used to shaft hundreds of thousands if not millions.

Posted by: rodsmith | Mar 20, 2014 7:52:50 PM

Is the recognition in Watts "At the very least, McMillan allows for the possibility that the preponderance standard the Court approved for garden variety sentencing determinations may fail to comport with due process where, as here, a sentencing enhancement factor becomes `a tail which wags the dog of the substantive offense' ") (quoting McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986). 519 U.S. 148, n.2 (1997, still viable? It seems to me that the government is using acquitted conduct as a tail which wags the dog" in Ball's case.

Posted by: ? | Mar 20, 2014 9:55:01 PM

In theory, you could take sort of a hybrid approach that allows for judicial fact-finding and reliance on acquitted and uncharged conduct, but without having those facts determine the applicable guidelines range.

That is, you could say that the defendant's guidelines range has to be calculated by reference to facts admitted by the defendant or found by a jury. With that baseline set, you could then give the judge leeway to find facts by a preponderance of the evidence (including facts that underlay charges on which the defendant was acquitted) and rely on those facts to vary upwards under 3553(a). In Ball's case, for example, the judge could still impose the same sentence based on the same considerations.

The difference would be that on appellate review, rather than reviewing a within-guidelines, presumptively-reasonable sentence, the Court would be reviewing a way-above-guidelines sentence -- which of course it could still affirm as substantively reasonable.

It's not clear that this would fully address Scalia's as-applied Sixth Amendment concerns, though. Ultimately, the appellate court would probably have to say, "This sentence would be substantively unreasonable *but for* the findings related to Ball's other conduct," -- which (based on Scalia's reasoning) would mean that the sentence couldn't be lawfully imposed without the presence of those facts, which in turn would mean that they were subject to the Sixth Amendment's jury-trial right. That's a complicated question.

But my point is simply that there's a middle position between "no consideration of uncharged / acquitted conduct" and "use uncharged / acquitted conduct to calculate the guidelines range, with all the attendant consequences it entails."

Posted by: GCW321 | Mar 21, 2014 2:55:46 PM

actualy GCW no you can't. sorry but acquitted conduct under our constitution didn't happen at least as far as the individual facing the judge is concerned. After all under the BRD standard the constitution requires before your allowed to convict and then punish someone if you can't get that conviction under BRD constitutionally it didn't happen.

Therefore anyone trying to use it against said defendant is now a criminal and a traitor to their oath of office.

Posted by: rodsmith | Mar 21, 2014 3:18:47 PM

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