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Sixth Circuit En Banc Divides Over Sentencing:

On Christmas Eve, the U.S. Court of Appeals for the Sixth Circuit released its en banc opinion in United States v. White, a potentially important sentencing opinion. Splitting along traditional lines, 9-6, the Court held that it is constitutional for a judge to impose sentencing enhancements based upon the defendant's conduct underlying additional counts for which he was acquitted, so long as the resulting sentence does not exceed the jury-authorized maximum sentence for the crimes for which the defendant was convicted.

Judge Cook's opinion for the majority begins:

This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White's offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.
Judge Merrit's dissenting opinion begins:
The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years. There are at least two related but independently sufficient reasons to reverse White's sentence. First, the reasonableness — and thus legality — of White's sentence depends entirely on the presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment. Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense.

My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court's opinion in United States v. Watts, 519 U.S. 148 (1997). The majority also misunderstands the Supreme Court's Apprendi-Blakely-Booker line of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.

After briefly explaining the sentencing facts of this case (facts glossed over in the majority opinion), I will set out the reasoning the majority should have followed. Because the sentence cannot be upheld as reasonable without accepting as true certain judge-found facts, the sentence represents an as-applied violation of White's Sixth Amendment rights and should be reversed. White's sentence, of course, is just one example of the widespread problem of using judge-found facts to calculate the applicable sentencing range under the Guidelines. In my view, the solution to this problem lies in the distinction between offense conduct, which must be found by the jury or admitted by the defendant, and offender characteristics, which may be found by the sentencing judge. Next, I turn to the broader question of acquitted conduct. Because there is no binding precedent on the issue of acquitted conduct and the right to trial by jury, we should address this open question by reference to the history and substantive protections of the jury-trial right. In so doing, I conclude that punishment for acquitted conduct poses unique constitutional problems and must be avoided.

I am anything but a sentencing law maven — and I would normally expect to agree with the judges in the majority than those in the dissent — but I am inclined to think the dissent is correct here. I also think it is also interesting that, while the Supreme Court has not spilt along traditional ideological lines in its big sentencing cases (e.g. Apprendi, Blakely, Booker), the split here is along traditional right-left lines.

Paul Doug Berman has more here and here. [Many apologies to Doug Berman, I have a bad habit of calling him "Paul.")

Realist Liberal:
I would normally expect myself to agree more with the dissenters on close issues but in this case, as a matter of established law, I think the majority has it correct. The remedial opinion in Booker and the subsequent cases give huge discretion to the sentencing judge to consider essentially anything. Because the Guidelines are merely advisory, the maximum sentence authorized by law is the max penalty legally authorized by the jury's verdict just like the majority says.
12.31.2008 11:44am
kdonovan:
To me the majority's result (if not their reasoning) seems pretty Orwellian - you will be sentenced based on assuming conduct for which you were acquitted.
12.31.2008 12:05pm
Soronel Haetir (mail):
Much as I dislike aquitted conduct enhancements Merrit's dissent veers off track when he writes that an aquitttal indicates the defendant didn't commit that act. Aquittal only indicates lack of prrof beyond reasonable doubt.

I also seem to recall Scalia writing to the effect that the offender is placed in jeopardy of the entire range of a particular offense by the fact of conviction. I don't recall whether that was in a mjority or concurrence though. But it certainly supports the 6th circuit majority here.
12.31.2008 12:12pm
Anon321:
Because the Guidelines are merely advisory, the maximum sentence authorized by law is the max penalty legally authorized by the jury's verdict just like the majority says.

But with the development of substantive reasonableness review, is it really accurate to say that a judge can sentence anywhere within the statutory range? Imagine that the statutory range in a given case is 5 years to life, and the facts of the case point to a recommended Guidelines range of 6 years. If the judge sentences him to 30 years, the court of appeals would say, "that's completely unreasonable" and reverse the sentence. Ok, so what if instead the judge finds a whole series of facts, either never presented to or rejected by the jury, which ratchets the recommended Guidelines range up to 30 years, and the judge sentences him accordingly. That sentence will be upheld as reasonable on appeal because it's within the recommended range.

But the second sentence is reasonable and legal only because of the presence of certain facts. Those facts are legally essential to the sentence. Apprendi, Blakely, etc. say that when facts are legally essential to a sentence, they must be found by a jury. Right?

Seems like Scalia nailed this in his Rita concurrence, but circuit court judges continue saying that the only relevant thing is the statutory range, even though appellate review of sentencing is largely determined by the underlying recommended Guidelines range and how far the atual sentence deviates from it.
12.31.2008 12:17pm
AlanO:
The acquittal does not mean that something "didn't happen." Judges use facts that have not been found by a jury to be true to influence sentencing decisions all the time.

Example: a judge sentences a defendant to prison rather than probation after finding that the defendant has never had a meaningful job in his entire adult life. The judge (quite reasonably) thinks this means the defendant doesn't have what it takes to benefit from probation given that circumstance. If the facts of the defendant's work history influence the sentencing decision, do we believe the Sixth Amendment requires a jury trial to first make a finding on work history? In following this issue (including on Doug Berman's excellent blog) I have yet to encounter a person who advocates that point of view. Yet there is no fundamental or constitutional difference between facts like work history and facts like acquitted conduct. An acquittal means a specific and narrow thing - it is not an adjudication that the defendant has been "cleared," found to be "factually innocent" or anything like it.
12.31.2008 12:18pm
ReaderY:
I think the Apprendi-Booker line of cases is somewhat unclear here, due to the split 5-4 majority in Booker. While I think the majority is correct here that pre-Booker precedent permitting this still applies despite any weakening Booker may have given it because Adarand Constructors requires adhering to Supreme Court precedents that are specifically on point even if a more general ruling seems to weaken them, perhaps the Supreme Court will see fit to clarify the situation. It seems to me this issue goes right to the heart of the Booker split. I think the dissenters may ultimately be vindicated.

On the one hand, the Booker remedy did give judges broad descretion to apply sentences within the statutory maximum, and there is of course the pre-Booker precedent permiting a sentencing judge to slip through the gap that exists between the beyond-a-reasonable-doubt standard of a jury verdict and the preponderance-of-the-evidence standard needed for a sentencing decision. But on the other hand, the legal reasoning that saw a need for a Booker remedy in the first place would seem to suggest grave problems with a judge formally finding specific facts directly contradicting a specific jury finding.

While the 6th Circuit is probably constrained by precedent and the Adarand Constructors rule for lower federal courts, I believe the dissent is ultimately the better argument and the one federal court that's not constrained by Adarand Constructors should pay it heed.
12.31.2008 12:28pm
trad and anon (mail):
To me the majority's result (if not their reasoning) seems pretty Orwellian - you will be sentenced based on assuming conduct for which you were acquitted.
"Orwellian" is exactly the right word. If the Constitution permits this, so much the worse for the Constitution.
12.31.2008 12:32pm
Jacob Berlove:
The big mistake made by the majority here is that nothing in the remedial Booker opinion foreclosed (or could logically foreclose) as applied challenges. If it's pretty clear that the variance or departure couln't have been upheld as resonable without the judge found facts, the sentence violates the constitutional Booker opinion. Not howevre tha the offense/offender distinction suggested by the dissent was alreay rejected by the supreme court in Cunningham.
12.31.2008 12:58pm
Jacob Berlove:
Not however tha the —> "Note however that the". The other spelling mistakes are clear... sorry, I was just in a rush...
12.31.2008 12:59pm
Norman Bates (mail):
The judge in the case under appeal, as do judges in most sentencing decisions, took into consideration a variety of factors. In this particular case, these factors included evidence presented during the trial regarding charges of which the jury acquitted the defendant. After taking into consideration all these factors -- which is a judge's responsibility and duty -- the judge decided that a sentence towards the higher end of the permissible sentence range was most appropriate. I don't see any real traction for a succesful appeal here.
12.31.2008 1:02pm
Anon321:
After taking into consideration all these factors -- which is a judge's responsibility and duty -- the judge decided that a sentence towards the higher end of the permissible sentence range was most appropriate.

I think it would have been one thing if the sentencing judge had calculated the recommended Guidelines range based only on convicted or admitted conduct, and then said, "you know, I think he may also be responsible for the weapons offenses, so I'm going to sentence him to the top of that range" or even if he had said that he was going to go above the recommended range (with the corresponding necessity for greater justification the farther above he went).

But for him just to add all those enhancements, calculate the recommended range based on judge-found facts, and then choose a sentence in the middle of that range (confident that it would be upheld on appeal, since it's within the recommended range and, therefore, almost certainly reasonable) ... well, that seems to be something different than what you're describing. "Considering factors" and calculating the recommended range are not really the same thing.
12.31.2008 1:35pm
Philistine (mail):
Of all the bizarre and byzantine aspects of federal sentencing--this one seems to provoke the most disbelief and outrage among lay people.

Clients also have a hard time with it...
12.31.2008 2:08pm
Fub:
kdonovan wrote at 12.31.2008 12:05pm:
To me the majority's result (if not their reasoning) seems pretty Orwellian - you will be sentenced based on assuming conduct for which you were acquitted.
Specifically, it encourages prosecutors to pile on charges, especially patently ridiculous charges. Acquittal on the ridiculous charges won't help if defendant is convicted on any charge. Piling on absurd charges becomes a means for prosecutor to obtain maximum sentence for conviction on any charge.
12.31.2008 2:11pm
Steve:
Well sure, if you can persuade a judge to agree with the absurd charges, which doesn't strike me as a trivial task.
12.31.2008 2:18pm
Roger Schlafly (www):
What good is a constitutional right to a jury trial, if you can get acquitted by a jury and sentenced for the allegation anyway?
Example: a judge sentences a defendant to prison rather than probation after finding that the defendant has never had a meaningful job in his entire adult life.
And what if it turns out that the defendant did have meaningful jobs, but never had notice that evidence of his employment was going to make the difference between going to prison or not? If having a meaningful job is really that important, then write it into the law and let the jury decide.
12.31.2008 2:27pm
Jay:
The problems are obvious, but no one seems to consider what the alternative is. Under a traditional sentencing system, a judge needed to give no reason at all for sentencing within a statutory range--and so of course could be considering acquitted conduct, or anything else, without mentioning it. If you keep the basic currrent framework but say a judge can consider anything except, specifically, acquitted conduct, that also strikes me as leading to weird and perverse results--i.e., someone never charged with a crime, and for which the evidence is entirely contained in the probation-office generated and unbound-by-the-rules-of evidence PSR, can have his sentence massively enhanced for that conduct, while someone who was charged and against whom the gov't presented considerable evidence, but whom the jury ultimately chose to acquit for any reason, can't have the much better-evidenced conduct considered at all.

Moreover, it is interesting to consider exactly what conduct an acquittal would bar a judge from considering--only that necessarily dicated by the elements of the offense? I wonder if such a scheme wouldn't lead to issues faced now by courts attempting to apply the "categorical approach" to discern whether some prior conduct was a crime of violence or aggravated felony.
12.31.2008 2:47pm
Steve:
And what if it turns out that the defendant did have meaningful jobs, but never had notice that evidence of his employment was going to make the difference between going to prison or not?

It's not as though sentencing occurs in some ex parte meeting between the judge and the prosecution. If the prosecution wants to argue for a longer sentence because the defendant has never held a job, the defendant gets the opportunity to say wait, yes I have. He's not a potted plant.
12.31.2008 2:54pm
Mark Jones (mail):
So I guess that if I, as a juror, decide to acquit someone based on facts not presented in court (like, for instance, my conviction that the drug laws are unconstitutional), the judges will accept that this is entirely okay?

No? What a surprise.
12.31.2008 3:00pm
Philistine (mail):

So I guess that if I, as a juror, decide to acquit someone based on facts not presented in court (like, for instance, my conviction that the drug laws are unconstitutional), the judges will accept that this is entirely okay?



There's not really anything they can do about it once you actually have acquitted the defendant...
12.31.2008 3:22pm
Lombardo diaz (mail):
To me the majority's result (if not their reasoning) seems pretty Orwellian - you will be sentenced based on assuming conduct for which you were acquitted.

"Orwellian" is exactly the right word. If the Constitution permits this, so much the worse for the Constitution.


The constitution is a living document. The idea that it says anything in particular is naive and outmoded.
12.31.2008 3:44pm
Roger Schlafly (www):
Lesson for jurors: If you want to acquit on some of the charges, then the only way to be sure about it is to acquit on all the charges.
12.31.2008 3:57pm
Oren:

"Orwellian" is exactly the right word. If the Constitution permits this, so much the worse for the Constitution.

I agree in substance but not in conclusion. The guarantees in the Constitution are not meant to guard against every possible offense against justice.
12.31.2008 4:25pm
WASP:
OMG. Merritt got this one right. Must be Christmas.
12.31.2008 4:38pm
David Schwartz (mail):
"Because the sentence cannot be upheld as reasonable without accepting as true certain judge-found facts, the sentence represents an as-applied violation of White's Sixth Amendment rights and should be reversed."

This statement is incorrect and clearly shows the error in the dissent's reasoning. One can uphold the sentence as reasonable without accepting as true any judge-found facts. One merely has to find that the the judge was within his discretion in finding that those facts were established by a preponderance of the evidence.

That the jury found them not to be established beyond a reasonable doubt does not shed any light on this question. This case would be precisely the same if the conduct was uncharged -- otherwise you would have to logically hold that all conduct used to find a longer sentence reasonable must be established beyond a reasonable doubt.
12.31.2008 5:11pm
Anon321:
This statement is incorrect and clearly shows the error in the dissent's reasoning. One can uphold the sentence as reasonable without accepting as true any judge-found facts. One merely has to find that the the judge was within his discretion in finding that those facts were established by a preponderance of the evidence.

I'm not sure I follow. Are you saying that an appellate judge doesn't have to accept the facts as true, he just has to accept that the sentencing judge accepted the facts as true by a preponderance of the evidence? If so, what's the significance of that distinction?

It seems to boil down to this: if the weapons stuff happened, the sentence is reasonable; if it didn't, it's not. The judge concluded that it did happen, thus converting the sentence from unreasonable (and illegal) to reasonable (and legal). Doesn't Blakely, etc. say that facts legally essential to a sentence must be found by a jury?
12.31.2008 5:46pm
Oren:

It seems to boil down to this: if the weapons stuff happened, the sentence is reasonable; if it didn't, it's not. The judge concluded contrary to the finding of the jury that it did happen

The judge's discretion to set sentencing cannot be construed to reverse a jury's decision to acquit. Something akin to Heck is required here -- the judge cannot collaterally attack the jury's decision by using those offenses as an aggravating factor.
12.31.2008 6:37pm
David Schwartz (mail):
Anon321: No, your argument is incorrect. Suppose a person is sentenced to life in prison for murder. This sentence is legally reasonable even if the person didn't in fact commit the murder. It's legally reasonable if it was shown at trial that the person committed the murder beyond a reasonable doubt and a jury so found. If we assume, hypothetically, that the murder didn't occur (but we have no way to establish this in court), the sentence is still reasonable.

We don't evaluate the reasonableness of sentences on the truth or falsity of unknownable facts but on the strength of the evidence that supports or disproves those facts.

In other words, strictly speaking, whether or not you in fact committed a crime is legally irrelevant. What's relevant is whether and to what extent one can prove or demonstrate that you did so or didn't do so.

Oren: The jury's decision to acquit means that those charges were not proven beyond a reasonable doubt. Nobody is collaterally attacking that decision. We can assume that it is true that those charges were not proven beyond a reasonable doubt.

Assume, for the sake of argument, that a particular charge can be proven by a preponderance of the evidence but not beyond a reasonable doubt. Assume that this is inarguable and everyone agrees on it. Would you say this fact can be used to enhance sentencing if and only if it isn't charged as a separate offense? Isn't that bizarre?
12.31.2008 7:07pm
Steve2:
This case, and really this sort of case generally, makes me wonder why there isn't more support for the Scottish jury system. Under that, there's the possibility of the jury determining innocence beyond a reasonable doubt, right? Asides from being the intuitive counterpart to determining guilt beyond a reasonable doubt, it seems like it would have the benefit of establishing as a fact that the defendant didn't do something. That strikes me as an advantage, since fewer things would fall into the "maybe he did it, maybe he didn't" morass than do with only having the "not proven beyond a reasonable doubt" catchall.
12.31.2008 7:34pm
Oren:


Assume, for the sake of argument, that a particular charge can be proven by a preponderance of the evidence but not beyond a reasonable doubt. Assume that this is inarguable and everyone agrees on it. Would you say this fact can be used to enhance sentencing if and only if it isn't charged as a separate offense? Isn't that bizarre?

It can't be used in either case, since the 6A requires that any fact used to enhance a sentence must be proven to the jury beyond a reasonable doubt.
12.31.2008 8:05pm
David Schwartz (mail):
Oren: Are you citing some case, or is that your personal view of how 6A should be interpreted? Or are you using "enhance" in an unusual way?

The facts found by the jury don't mandate any particular sentence. They permit a range of sentences. The judge then has to choose a reasonable sentence inside this range. He can make this decision based on facts that he finds by a preponderance of the evidence.

This was my understanding of how sentencing was supposed to work.
12.31.2008 8:15pm
Anon321:
In other words, strictly speaking, whether or not you in fact committed a crime is legally irrelevant. What's relevant is whether and to what extent one can prove or demonstrate that you did so or didn't do so.

I agree that a jury's verdict doesn't prove that the event occurred (or did not occur). Even if the jury were to say that they were 100% certain that the defendant didn't commit the crime, that alone would only be an expression of their opinion and would not prove anything about the underlying action.

But I still don't see how this epistemological point is relevant to the argument. The dissent, as I understand it, is saying that the sentence could only have been legitimately applied if certain facts were found, and that those facts, under Blakely, must therefore be found by the jury. Perhaps the passage you quoted earlier should say that the sentence can be upheld as reasonable only if the weapons-related conduct is "found to have occurred" rather than "accepted as true." Would you agree with that point? If so, I don't really see that it differs from what was said, other than semantically.
12.31.2008 8:17pm
Jacob Berlove:
Oren,

Actually reasonable doubt is a component of the fifth amendment's due process clause.

David Schwartz,

There is nothing bizarre about allowing uncharged offense related conduct to be considered in sentencing, but but disallowing its use if charged and not found by a jury. It is perfectly reasonable for the acquitted defendant to obtain complete relief on that which he was acquitted of in exchange for having to undergo the burden of defending it at trial. Put differently, it makes sense to say that a prosecutor who wants to expose a defendant to a charge to the jury claiming that the said defendant committed a certain act risk a res judicata on that accusation because of what the defendant had to go through. The argument isn't as strong when the defendant never had to go through the anguish in the first place. However, it would appear that this argument is simply a form of a double jeopardy argument, an argument rejected by the Supreme Court in Watts.
12.31.2008 8:32pm
David Schwartz (mail):
Anon321: The point is what the applicable legal standard is. Facts that set the sentencing range must be found beyond a reasonable doubt by the jury. Facts that the judge uses to set the sentence within that range must be found by a preponderance of the evidence.

That the sentence would not have been upheld as reasonable had the judge not found those facts by a preponderance of the evidence is simply irrelevant. It's a purely hypothetical situation that bears no relationship to the actual situation.

In this case:

1) The facts that set the sentencing range were found beyond a reasonable doubt by the jury.

2) The facts the judge used to set the sentence within that range were found by a preponderance of the evidence by the judge.

That makes this sentence reasonable. Whether it would have been found unreasonable in some alternate universe where other things happened doesn't seem to matter.
12.31.2008 8:32pm
Ohio Scrivener (mail):
The majority has the better argument.

Under Booker, a court may still sentence a defendant based upon facts that are not proved beyond a reasonable doubt so long as that sentence remains within the guidelines.

Here, an acquittal simply means that the state failed to prove each element of the offense beyond a reasonable doubt. It does not mean that the defendant is innocent or failed to engage in the prohibited conduct (as shown by a preponderance of the evidence).

The upshot is that different standards can lead to different outcomes. As long as we permit a person to be sentenced under one standard, and convicted under another, an acquittal will not automatically shield a person in sentencing from bad acts that are still proved by a preponderance of the evidence.
12.31.2008 8:33pm
Esquire:
I'm not getting how this isn't a no-brainer:

Our system says nobody can be criminally punished in ANY way for ANY act under ANY circumstances -- which has not been proven to a jury beyond a reasonable doubt. End of story.

Folks here talking about the "actual truth of what happened" or "what a judge could get away with factoring in if he was discrete" seem to really be sidestepping that core principle. Let's get back to basics and not too bogged down in minutae.
12.31.2008 8:35pm
David Schwartz (mail):
Esquire: This isn't about whether he can be criminally punished for an act not proven to a jury. In this case, he was punished for an act that was proven to a jury, to a sentence inside the range proscribed by law for that act.

The dissent's argument is that in an alternative universe with different facts, the sentence would have been overturned as unreasonable. That doesn't make it unreasonable in this universe.
12.31.2008 9:05pm
Jacob Berlove:
David Schwartz,

The sentence isn't unreasonable in this universe, but the dissent's point is that it's unconstitutional. Since the sentence couldn't be upheld as reasonable without the judge-found facts, the judge-found facts are thus essential to the sentence, which means that the defendant's sentence is unconstitutional under the Booker constitutional opinion, which applies Blakely to require that a jury find any facts* essential to a criminal sentence.

*other than the fact of a prior conviction
12.31.2008 11:43pm
Displaced Midwesterner:
"In other words, strictly speaking, whether or not you in fact committed a crime is legally irrelevant." Not really true. Whether or not you in fact committed the crime is legally unknowable. The evidence is really all you have to go on. No need to delve into a philosophical debate about whether we ever can really know anything or not.

"The majority has the better argument." The majority probably has a better argument under Booker, but I think it's a lot more debatable whether they have the better argument.

Disallowing acquitted conduct enhancements would still allow for the more transparently reasoned sentences that the guidelines regime had led to (although that is somewhat of a myth - at many sentencings the reasoned consideration of sentencing factors amounts to a rote recitation that the judge has considered the 3553(a) factors). Jury trials are rare enough anyway, I wonder how much it would actually effect charging decisions. When it comes down to it the main problem with forbidding the use of acquitted conduct would be that deciding what counts as acquitted conduct will be a very difficult issue.

Still, there are probably good reasons to not use acquitted conduct. While it is true that an acquittal does not legally mean that conduct is disproven, most people who are not lawyers (and plenty who are) find it pretty egregious to base someone's sentence on something they were acquitted of. While a prosecutor might avoid charging and just bring something up at sentencing, that scenario doesn't implicate the sense that using acquitted conduct gives the prosecutor a do-over. Ultimately, using acquitted conduct offends many people's sense of justice and fairness. And when we are talking about locking people up for years, that is pretty important.
12.31.2008 11:52pm
David Schwartz (mail):
Since the sentence couldn't be upheld as reasonable without the judge-found facts, the judge-found facts are thus essential to the sentence, which means that the defendant's sentence is unconstitutional under the Booker constitutional opinion, which applies Blakely to require that a jury find any facts essential to a criminal sentence.
This is a category not covered by Booker, Blakely, or Apprendi. These are not facts that increased the statutorily permitted maximum sentence. These are not facts the decreased the statutorily permitted minimum sentence. These are simply facts that informed the judge's discretion. They are not essential to the statutory ability to impose the sentence.

Also, to address DM's point: If using acquitted conduct offends reasonableness and fairness, wouldn't using uncharged conduct do so as well? I think, if you feel this way, there is no way to satisfy you. If you a scheme where the jury's verdict leads mechanistically to a sentence, you will argue it's not fair that judge's can't use other factors to adjust the sentence downward. If you do that, you'll next argue that it's not fair that acquitted and uncharged conduct can be used to deny such downward departures.

If you're going to have judges with discretion to vary sentences, there is no practical difference between saying they can only adjust down or they can adjust both ways. Denying a downward departure is no different from an upward departure. You serve more time with the judge-found facts than without them.
1.1.2009 1:06am
Displaced Midwesterner:
"If using acquitted conduct offends reasonableness and fairness, wouldn't using uncharged conduct do so as well?" Not necessarily. I think for many people the difficulty using acquitting conduct poses is not the lack of formal charges or the judicial factfinding. It is that one decisionmaker, the jury, has reached one conclusion, only to have another, the judge, change the result. I realize that legally there are different standards involved, but that sort of detail is beside the point for most people's perception of the fairness of the process. And while I don't think many people really have any fundamental disagreement with a judge finding facts, there is something particularly jarring to the American psyche about a judge effectively (in the general public eye's) reversing a jury.
1.1.2009 1:37am
David Schwartz (mail):
DM: Why wouldn't this argument be just as compelling, "The judge raised my sentence because I used a firearm in the commission of the crime. But the prosecutor didn't charge me with that, so I had no opportunity to have the jury decide the question. Yet the just used it to increase my sentence. My right to a jury trial was violated."
1.1.2009 1:55am
Ricardo (mail):
Lesson for jurors: If you want to acquit on some of the charges, then the only way to be sure about it is to acquit on all the charges.

The other side of that coin is if you are a juror in the Federal system and you think the defendant is a scumbag (and let's face facts -- the vast majority of them are) but still find reasonable doubt on some of the charges, don't worry about acquitting him on those charges as he will still probably get the book thrown at him. Think of Al Capone going away for tax fraud, for instance.

Unless we are going to put juries in charge of sentencing decisions, it doesn't really make sense to have some facts relevant for sentencing adjudicated exclusively by juries and others exclusively by judges. Maybe we could introduce verdicts where the jury can say either "innocent" or "not proven" to charges that are also relevant to sentencing guidelines. But that's a statutory issue, not a constitutional one.
1.1.2009 5:08am
Anon321:
This is a category not covered by Booker, Blakely, or Apprendi. These are not facts that increased the statutorily permitted maximum sentence. These are not facts the decreased the statutorily permitted minimum sentence. These are simply facts that informed the judge's discretion. They are not essential to the statutory ability to impose the sentence.

But it seems to me that your argument depends on the assumption that a judge can legally sentence a defendant anywhere within the statutory range. That would have been a perfectly reasonable assumption after Booker. But after Rita, Gall, etc., -- and the development of substantive reasonableness review in the Courts of Appeals -- it's inaccurate: there are sentences within the statutory range that cannot be legally imposed based on the facts of the case. If, for example, the statutory range for conviction for possessing 10kg or more of cocaine is 10 years to life, and a defendant is convicted of carrying exactly 10 kg, a life sentence (without any other aggravating facts) would be reversed on appeal as unreasonable and thus could not legally be imposed.

As Scalia points out in Rita, if the Court had actually created a discretionary sentencing regime, where a judge was permitted to sentence anywhere within the statutory range, then we wouldn't have this problem. But since the Court has created a regime in which the legality of some within-statutory-range sentences depends on the presence or absence of certain facts, we have potential Sixth Amendment problems.

Anyway, the Court has clearly made a muddle of its recent jury-trial jurisprudence. (As Judge McConnell pointed out somewhere, 8 of the 9 Justices in Booker didn't think the two opinions fit together, and the one who thought they did, didn't explain why.) I hope the Court takes this or another case and injects some clarity into this area of the law soon.
1.1.2009 11:30am
David Schwartz (mail):
Anon321: The sentences cannot be legally imposed unless they're reasonable. That the judge found that these facts had been demonstrated by a preponderance of the evidence makes the sentence reasonable. I don't see a 6A problem.

No sentence can be legally imposed if the court does not have jurisdiction over the defendant. But we don't require the jury to find this fact beyond a reasonable doubt. It's specifically the set of facts that set the statutorily authorized sentencing range that must be found beyond a reasonable doubt by a jury.

It is erroneous to say the legality hinges on the "presence or absence of certain facts". It hinges on whether or not the judge found, within his discretion, that those facts were established by a preponderance of the evidence. This is law, not metaphysics.
1.1.2009 1:06pm
Anon321:
The sentences cannot be legally imposed unless they're reasonable. That the judge found that these facts had been demonstrated by a preponderance of the evidence makes the sentence reasonable.

I agree. So why is this not a Sixth Amendment problem, in light of these rules:

Blakely: "The 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant."

Cunningham: "If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied."

Aren't you saying that the finding of certain facts by the judge makes the sentence reasonable (such that without the finding the sentence is unreasonable), and that without the sentence being reasonable, it can't be legally imposed? Why is this not contrary to the holdings quoted above?

Isn't there some maximum sentence -- below the statutory maximum -- that the judge could have reasonably imposed "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant"? Anything above that would be unreasonable. To say that this otherwise-unreasonable sentence becomes reasonable because the judge found certain facts seems to be a clear violation of the Court's Sixth Amendment rules.

It is erroneous to say the legality hinges on the "presence or absence of certain facts". It hinges on whether or not the judge found, within his discretion, that those facts were established by a preponderance of the evidence. This is law, not metaphysics.

I still think this is a purely semantic difference. To say that a fact is present in the case just means that it's been found by a factfinder; to say that a fact is absent just means that it hasn't been found by a factfinder.
1.1.2009 3:06pm
Ryan Waxx (mail):
Example: a judge sentences a defendant to prison rather than probation after finding that the defendant has never had a meaningful job in his entire adult life. The judge (quite reasonably) thinks this means the defendant doesn't have what it takes to benefit from probation given that circumstance


This is a bad example which obscures the relevant part of the question. In your example, no one is contesting weather or not the fact that the judge is relying on... weather or not the defendant had a job... is true. Weather or not the facts the judge is relying on are properly found to be true is the major question here.
1.2.2009 10:56am
einhverfr (mail) (www):
David Scwartz:

If using acquitted conduct offends reasonableness and fairness, wouldn't using uncharged conduct do so as well?


I think the minority relies on the difference between offences and offender characteristics. In other words, if one is to sentence someone for a crime the judge has wide latitude, by the minority's reasoning, to use characteristics of the offender but not additional offences.

So, if the prosecution were to allege that, in the course of committing one crime, that other crimes were committed which they did not press charges for, those would be excluded from consideration too. However, if we are looking to non-criminal behavior for guidance, that is OK.

For example: Defendant never had a job, not suited to probation, send him to jail is ok.

Prosecution alleges defendant also was an accomplice to another crime for which he was not convicted (whether charged or not), therefore longer sentence is not ok.
1.2.2009 1:57pm
David Schwartz (mail):
Anon321: While your argument follows logically from the literal wording of those excerpts, it only works by extending those excerpts to circumstances in which they were not intended to apply. None of those excerpts were intending to address the distinction involved here -- a sentence that is within the statutorily-defined range but which would not be upheld as reasonable.

Simply put, you cannot have downward sentencing departures without their absence. The absence of a downward departure is the logical equivalent of an upward departure. You will have to have cases where two defendants admit, or the jury finds, the same facts, and yet the sentences are different. Otherwise, there is no judicial sentencing discretion at all.

By your argument, why can't the person who got the longer sentence claims his 6A rights were violated?

If there's such a thing as judicial discretion, but also such a thing as appellate oversight for that discretion, there will have to be a range of sentences permitted by the findings and some sentences that are upheld within that range and some not based on the facts found by the judge.

I don't see how the dissent's argument leads to any conclusion other than that there is no judicial discretion or that such judicial discretion can never have appellate oversight.
1.2.2009 9:40pm
David Schwartz (mail):
einhverfr: The problem with that argument is that is makes it impossible to have both downward departures and appellate review, both of which are essential.

There are going to have to be cases where the juries find the same facts, the offender characteristics are the same, and the sentences are different. Appellate courts will have to uphold those differences on the basis of the different judge-found facts about the offense. Otherwise, you can never reduce a sentence because an offense was committed in an unusually-minor way.
1.2.2009 9:58pm

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