Seventh Circuit blesses extreme acquitted conduct enhancement

Harlan J. Protass, who authors the Second Circuit Sentencing Blog, sent me this e-mail flagging a Seventh Circuit opinion of note from late last week that I missed:

Thought you would absolutely want to check out the 7th Circuit’s decision this past Friday in US v. Hurn, No. 06-3666 (7th Cir. Aug. 3, 2007) (available here).  It strikes right at the heart of the acquitted conduct issue.  He was tried on crack and powder charges.  He was convicted of the powder charge, and acquitted of the crack charge.  If sentenced purely on the cocaine charge, he would have received 27 to 33 months. He wasn’t. Instead and based on acquitted conduct, he got 210 months. Wow.  And the 7th Circuit affirmed it.

In addition to being concerned about the Seventh Circuit’s willingness to bless again an acquitted conduct enhancement, Hurn also applies the presumption of reasonableness to a crack guideline sentence despite the fact that the US Sentencing Commission has repeatedly said that the crack guidelines are excessive.  And the Hurn panel also rejected the defendant’s claim that his very low IQ should be a significant mitigating consideration. 

In various ways, Hurn‘s affinity for the guideline range calculated based on acquitted conduct reveals the disappointing nature of post-Booker sentencing review for reasonableness.