Some notable acquitted conduct news and notes

A helpful colleague alerted me to two items of note for those (like me) who are interested in debates over acquitted conduct sentencing in the federal system. 

First, on the legislative front, as indicated at this webpage, the US House of Representative Committee on the Judiciary has a markup scheduled for tomorrow morning at 10am, and one of the bills scheduled to be marked up is The Prohibiting Punishment of Acquitted Conduct Act of 2023 (HR 5430).   I believe we should expect the bill to move forward, recalling that the US House last year voted for the Prohibiting Punishment of Acquitted Conduct Act of 2021 by a vote of 405 to 12.  Of course, the House is under different leadership and so nothing it every a given in the legislative process (and, of course, this kind of bill has yet to move forward in the US Senate).

Second, on the judicial front, a First Circuit panel handed down an interesting acquitted conduct sentencing ruling last week in US v. Carvajal, No. 22-1207 (1st Cir. Oct. 26 ,2023) (available here).  Because the outcome is standard for lower federal court acquitted conduct cases, I will just here provide the start of the opinion:

After a jury convicted Bernardito Carvajal of possession with intent to distribute and distribution of fentanyl, the district court sentenced him to 120 months in prison.  Carvajal appeals his sentence on two grounds.  First, he argues the district court considered impermissible evidence, including conduct of which the jury acquitted him, in determining his sentence. Second, Carvajal contends the district court should have reduced his sentence based on his acceptance of responsibility at trial.  Because controlling case law permits the consideration of acquitted conduct at sentencing and the record otherwise supports the district court’s rulings, we affirm.