An academic amicus Note for the Sixth Circuit on acquitted conduct

As noted in prior posts here and here and here, the Sixth Circuit is currently considering en banc review of the continuing use of acquitted conduct as a sentencing enhancement after Booker in the wake of a panel’s notable per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).  Though some commentators seem to think only the Supreme Court should be giving acquitted conduct issues second thought, a recent sudent note available here from SSRN lays out a thoughtful case that Watts is not the end of the story for this issue.  The Note by James Bilsborrow is entitled “Sentencing Acquitted Conduct to the Post-Booker Dustbin,” and here is the abstract:

Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles.  He was charged, tried by a jury, and subsequently convicted on several counts of drug conspiracy.  But Mercado was acquitted of the most serious charges: participation in multiple murders, violent crimes in the aid of racketeering, and assault with a deadly weapon.  When the district court judge calculated Mercado’s sentence under the Federal Guidelines, however, he obliged the prosecution request to consider Mercado’s liability in the offenses for which the jury returned acquittals. As a result — and in spite of the jury’s verdict — Mercado’s Guidelines sentence increased by seventeen years.  The Ninth Circuit later affirmed this sentence increase.

Although judicial consideration of acquitted conduct — conduct for which an offender has been charged and acquitted by a jury — may strike non-lawyers as confusing, the practice is not only quite common, but was specifically sanctioned by the Supreme Court in United States v. Watts in 1997.  Ten years later, however, the Court’s sentencing jurisprudence is radically changed; beginning with Apprendi v. New Jersey in 2000, and continuing through its recent invalidation of the California state guidelines system in Cunningham v. California, the Court has steadily invalidated modern guidelines sentencing practices as violative of the Sixth Amendment right to a jury trial. In short, the Court has held that guidelines regimes often unconstitutionally transfer a disproportionate amount of fact-finding power from the jury to the judge.  This Note argues that judicial consideration of acquitted conduct is one such aspect of guideline sentencing that the Court’s recent jurisprudence renders unconstitutional.  Consequently, not only is Watts no longer controlling, but so also is the commonplace practice that allows a judge to replace a jury determination of guilt with his own.