Acquitted Conduct Sentencing, By the Numbers

Via Doug Berman, the 6th Circuit gave its Christmas present with its December 24th en banc decision on the constitutionality of acquitted conduct sentencing in United States v. White,  Here’s a hint as to the 7-6 outcome; don’t invite the majority to your holiday party unless you are desperate for a really bad time.

For those who might not yet be aware of what acquitted conduct sentencing is, consider this:  Defendant is charged with 3 counts in a federal indictment and goes to trial.  On two counts, the defendant is found not guilty.  Guilty on one count.  The defendant is thereafter sentenced based upon all three counts in the indictment.  Sounds crazy, doesn’t it? 

It may be wrong, but it’s not exactly crazy.  At least not if one understands the odd mechanics of legal precedent and reasoning, particularly as employed in the majority decision.  Put together these concepts, which relate well under many circumstances. 

1.  The judge may consider, at the time of imposing sentence, all conduct relevant to the conduct for which the defendant has been convicted.

Watts regarded acquitted conduct as providing the sentencing court with “[h]ighly relevant—if not essential . . . information.” 519 U.S. at 151–52.
2.  The standard of proof at sentencing as to the occurrence of conduct under consideration is preponderance of the evidence, rather than beyond a reasonable doubt as it would be at trial.
Relying on the different standards of proof that govern at trial versus sentencing, the Court concluded “that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”

3.  Along came Booker, holding that the federal sentencing guidelines were advisory, not mandatory, and Booker didn’t expressly overrule Watts.


Mendez accords with the view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct: “Watts remains good law.”

4.  While Watts rejected a 5th Amendment double jeopardy challenge to use of acquitted conduct sentencing, White is a 6th Amendment, right to jury case, challenging whether a judge can find facts (that the acquitted conduct occurred) when the jury did not.



As Booker itself recognized, Watts’s rejection of a double-jeopardy challenge to the use of acquitted conduct at sentencing did not close the door on subsequent Sixth Amendment challenges to sentences based on judge-found facts. Booker, 543 U.S. at 240–41 & n.4. Thus, although a court may properly look to facts underlying acquitted conduct in sentencing, the Sixth Amendment remains a backstop.


5.  But the right to a jury determination of fact only applies if it produces an increase in the sentence to be determined based on mandatory sentencing guidelines.



Had the district court in this case relied on acquitted conduct in determining the range under a mandatory guidelines regime, that sentence would have violated the Sixth Amendment as interpreted in Booker. For the same reason that Booker precluded district courts from finding sentencing facts that ratcheted up mandatory Guidelines ranges, it would have prevented district courts from doing the same thing with respect to findings related to acquitted conduct.


6.  If the sentencing guidelines are merely advisory, then the lower, preponderance standard prevails and finding of relevant conduct by a judge alone is sufficient.



For the same reason that Booker precluded district courts from finding sentencing facts that ratcheted up mandatory Guidelines ranges, it would have prevented district courts from doing the same thing with respect to findings related to acquitted conduct.


But these observations do not show that the Sixth Amendment prevents a district court from relying on acquitted conduct in applying an advisory guidelines system.


7.  This is so because Post-Booker, the relevant limit for a 6th Amendment determination is the statutory maximum sentence, not the advisory guidelines sentence.  So if the statute carries a max of 20 years, and the sentence doesn’t exceed 20 years, no harm, no foul.



In the post-Booker world, the relevant statutory ceiling is no longer the Guidelines range but the maximum penalty authorized by the United States Code. See United States v. Sexton, 512 F.3d 326, 330 (6th Cir.) (“Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings.”).


It’s hard to fault the reasoning, given how legal reasoning works.  Sure, it’s disingenuous, since acquitted conduct sentencing was the norm under the sentencing guidelines when they were mandatory, and are now permissible because of Booker making them merely advisory.  But you can’t blame sophists for doing a great job of it. 

The majority takes comfort in the argument that since the statute provides for a 20 year sentence, and the defendant’s sentence, though more than double what it would have been without the acquitted conduct, falls just shy of that 20 years, he has no basis to complain.  The circularity of this comfort is frightening, given that these are people who are asked to make decisions about other people’s lives.  That Congress stuck an arbitrary 20 years on the back end of a statute offers no justification for using it whenever possible.  Worse still, they know that and don’t care.

The line of reasoning is complete, in a world where precedent fills in logical gaps and decision-makers are more concerned with producing a consistent and unbroken line of caselaw than reaching a result that is almost universally considered fundamentally wrong. 

The dissent offers a simpler argument: Using acquitted conduct to sentence a defendant is wrong, and the defendant received a sentence of more than twice what he would have but for use of acquitted conduct.  When a jury rejects a charge, it must have meaning or the right to a jury trial itself has no meaning.  No amount of sophistry changes the clear, basic sense of wrong that accompanies a sentence based upon the very conduct that a jury just rejected.  This society is not prepared to accept such an outcome, no matter how symmetrical the legal reasoning supporting it.

The significance of a not guilty verdict is not merely in hearing the kind words, but in not going to prison for the underlying conduct anyway.  The dissent understood that.  As its asks, how does this promote respect for the law?  The answer is obvious,  It’s not just not the primary concern of the majority.

This case seems to be perfect for determination by the Supreme Court, with its 7-6 en banc split.  But the better question is whether we want the reasoning of the majority enshrined in Washington.  Remember, the Supremes aren’t always in perfect tune with fundamental fairness as understood by lesser people.

Some Christmas present.


5 comments on “Acquitted Conduct Sentencing, By the Numbers

  1. Tony "That Lawyer Dude" Colleluori

    It amazes me that when deciding if a person committed perjury at trial, the court (3d Circ.) says that the jury determination is to be given great weight and is nearly dispositive of the issue just because the jury found the defendant guilty of a crime even if not the highest count, yet when it comes to screwing the defendant over with related acquitted conduct, we give the juries finding nearly no weight at all.

  2. A Voice of Sanity

    Isn’t this the sort of result one would expect from the mental giants of Marquette Law School or the like? ISTM that the US system is turning into the most tortuous possible in its desire to punish everyone for everything.

  3. Jack Simpson

    Thank you for that explanation, which by going very slowly through it I understood. It crosses my mind reading this excellent latest post (they all are), that maybe good idea to retain the more rarefied, perhaps less practitioner-based approach in your law schools. Your JD is a three year postgrad degree; here in UK one just needs a one-year conversion course, the GDL (after any degree), and a one-year practitioner-based course (the LPC) to fulfil the academy-based requirements.

    The other route here is the specialised three-year law degree, the LLB, before the LPC. I always think that the product of the latter route is more likely to confidently get head round the more involved areas of the law; handy when searching for an approach that may be a bit less obvious in subsequent professional life. Not many LLBs here have much real practitioner-type stuff in them; the few that do are often dismissed as less prestigious (and thus easier to get into). Three years and the more academic the better, is my view. After that should come something like the wholly practitioner oriented 12-month LPC (solicitors) or BVC (barristers).

  4. Jdog

    Interesting. I’m not the only one, I think, who fails to understand the deep and sound principles involved; a friend asked me to explain the sound reasoning behind concurrent sentencing once, and all I could come up with was Dean Wormer and double secret probation.

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