Opposition to considering acquitted conduct en banc in White

November 14, 2007

As noted in this prior post, a Sixth Circuit panel earlier this month indicated that all three members would “strongly recommend” en banc review of the “important question” of “whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker, 543 U.S. 220 (2005).” This quoted language comes from the panel’s per curiam ruling in US v. White, No. 05-6596 (6th Cir. Oct. 5, 2007) (available here).

As detailed in this post, last month an en banc petition was filed in White and I am eagerly hoping the White panel will convince the majority of the Sixth Circuit to take up the acquitted conduct issue. Last week, the government filed its brief opposing en banc review in White. I received a copy of that opposition, and it can be downloaded here:

Download govt_en_banc_opp_in_white.pdf (I think the pdf was scanned upside-down, but the brief prints out fine for reading).

Not suprisingly, the government asserts that the defendants claims are foreclosed by the Supreme Court’s Watts decision a decade ago. But, as I have suggested in a number of prior posts, I do not think Watts ends this debate in the light of Blakely and Booker and Rita.

UPDATE: Because some commentors seem to think Watts ends this debate, it is valuable to remember that Booker clearly explains that Sixth Amendment issues were not raised on addressed in Watts. Moreover, the fact that Watts indicates that it is not per se unconstitutional to enhance sentences based on acquitted conduct in some cases does not logically entail that it is always constitutional to enhance sentences based on acquitted conduct in all cases.