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August 21, 2023

Another "Set for Sentencing" podcast focused on acquitted conduct and uncharged conduct and other hot sentencing topics

In a number of past posts, I have highlighted the great podcast created by Doug Passon, a defense attorney and documentary filmmaker, which is called "Set for Sentencing."  I probably should blog about every new weekly episode because Doug produces, week in and week out, a whole lot of terrific sentencing content (and folks can catch up at this archive

I have been honored to speak on the "Set for Sentencing" podcast a few times, and I have had the distinct pleasure of discussing "acquitted conduct" sentencing on the blog multiple times.  As noted via this post from January, Mark Allenbaugh and I first spoke with Doug Passon about proposed amendment to the US Sentencing Guidelines on acquitted conduct and SCOTUS consideration of the issue in an episode titled, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

This summer, in the wake of the US Sentencing Commission opting not (yet) to move forward with any Guideline amendments and SCOTUS seemingly deferring to the Commission on this issue, Mark Allenbaugh and I got back together with Doug Passon to tape another episode.  This one is brilliantly titled, "Acquitted Conduct Revisited: Mmmmm... Flavors of Evil."  This new podcast discusses the latest (lack of) developments on acquitted conduct, and also includes some heated discussions of whether and how we ought to distinguish between acquitted conduct and uncharged conduct.  Among other things I learned via this podcast, the definition of "uncharged conduct" can be as unclear as any definition of "acquitted conduct." 

Some of many prior related posts:

August 21, 2023 at 05:54 PM | Permalink


Donald Trump is (correctly) expected to accept his losses in court, understand that his arguments just weren't that good, and move on. Would that the defense bar could understand it too, but some things are just never going to happen.

The time to have the fight about acquitted conduct was when the Guidelines, based expressly on a real offense system, were being written forty years ago. Or when SCOTUS was considering whether to hear McClinton but denied cert with no dissenting votes (and no, fretting is not dissenting).

If, as the defense bar insists, sentencing should consider the whole person, including aspects of his life that haven't come close to being proven BRD, then let's do it. Otherwise, perhaps it's time to move on to other wonderful defense ideas, like that prison should be abolished BECAUSE THEY'RE ALL SO WONDERFUL.

Posted by: Bill Otis | Aug 21, 2023 6:34:10 PM

Here comes a blast from the past:

Doug, I think we have a winner on the most immoral president--Joe Biden. Here are his remarks about Maui:

I don’t want to compare difficulties, but we have a little sense, Jill and I, what it’s like to lose a home. Years ago — now 15 years ago — I was in Washington doing “Meet the Press.” It was a sunny Sunday, and lightning struck at home on a little lake that’s outside of our home — not a lake, a big pond — and hit a wire and came up underneath our home into the heating ducts — the air conditioning ducts.

To make a long story short, I almost lost my wife, my ‘67 Corvette, and my cat.

WT actual F?

Posted by: federalist | Aug 22, 2023 10:16:54 AM

I see Doug doesn't want to revisit a topic he challenged me on not too long ago. Ha ha ha ha ha ha ha ha!!

"Donald Trump is (correctly) expected to accept his losses in court,"---depends on the loss. The E. Jean Carroll lawsuit reopened a long-closed SOL, and the story is ridiculous. At the end of the day, the government doesn't ask; it points a gun at you.

Posted by: federalist | Aug 23, 2023 11:45:57 AM

federalist, you have this tiresome eagerness to bring up an off-topic and foolish subject and then claim some kind of bizarre feat of achievement when folks show no interest in engaging you on this off-topic and foolish subject. You seem like a homeless person screaming to no-one and believing he has never lost an argument.

(Moreover, I have never had any interest in defending the morality of plagiarism Joe. I have long thought Joe Biden was (morally and politically) terrible in so many ways --- even before Bill Otis was singing his CJ praises for increasing the ammunition in the federal government's CJ guns.)

Posted by: Doug B | Aug 23, 2023 1:47:33 PM

Doug --

If you think you recall my singing Biden's praises, your memory is even worse than his.

I gave him due credit when he went along with the bi-partisan, anti-crime consensus in the Eighties and Nineties, but giving due credit isn't "singing praises." Besides, it does no good to sing his praises, because by sundown, he'll forget you did it.

Posted by: Bill Otis | Aug 23, 2023 2:01:38 PM

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