Judge Posner’s reasonable work on acquitted conduct sentencing

Providing a nice counter-point to what I considered troublesome work last week in Boyd (discussed here and here and here), Judge Posner today in US v. Horne, No. 05-4049 (7th Cir. Feb. 5, 2007) (available here) has an effective and nuanced discussion of the use of acquitted conduct enhancements in federal sentencing after Booker.  Though Judge Posner blesses an increase based on acquitted conduct, he appropriately highlights the discretion that district judges have in this context (cites omitted):

This is not a case in which a jury convicts a defendant of one very minor crime and acquits him of the serious crimes with which he was charged, and the judge then bases the sentence almost entirely on those crimes….  A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction.  That would be a judgment for the sentencing judge to make and we would uphold it so long as it was reasonable in the circumstances.

Some recent posts on acquitted conduct:

• A terrific district court opinion on acquitted conduct
• First circuit says acquitted conduct enhancements still fine
• Sincere questions about acquitted conduct sentencing