UNITED STATES оf America, Plaintiff-Appellee, v. Roger Clayton WHITE, Defendant-Appellant.
No. 05-6596.
United States Court of Appeals, Sixth Circuit.
Argued: June 4, 2008. Decided and Filed: Dec. 24, 2008.
551 F.3d 381
Before: BOGGS, Chief Judge; MERRITT, MARTIN, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, and GRIFFIN, Circuit Judges.
COOK, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp.
OPINION
COOK, Circuit Judge.
This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted cоunts to enhance White‘s offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.
I
White waited in a car armed with a 9mm rifle while his brother, Jeffrey, and Jeffrey‘s girlfriend, Laurie Fischer, robbed a bank of more than $100,000, holding two bank tellers at gunpoint and firing a shot near one teller‘s head. White drove the getaway car and led police on a lengthy high-speed chase that included shots fired from the car at pursuing officers. The chase ended only when White crashed into a roadblock. United States v. White, 134 Fed.Appx. 880, 882 (6th Cir.2005). A jury found White guilty of just two of six charges: armed robbery, which carried a maximum sentence of twenty-five years,
Applying the Guidelines’ relevant-conduct principles in sentencing White, see
When addressing the
White appealed, contending that the district court improperly considered acquitted conduct. The panel reviewing his appeal, with some expressed misgivings, adhered to earlier precedent on the issue, see United States v. Mendez, 498 F.3d 423 (6th Cir.2007) (per curiam), while urging en banc consideration. Recognizing that the acquitted-conduct issue presents a “question of exceptional importance,”
II
First, Mendez. A grand jury charged Victor Mendez with conspiracy to distribute 500 grams or more of a substance containing methamphetamine. 498 F.3d at 425. The jury foreman checked “yes” on the verdict form to indicate that the government proved beyond a reasonable doubt at least 50 grams, but checked “no” to indicate that the government failed to prove the offense involved at least 500 grams. Id. The Presentence Report (“PSR“) nevertheless relied on trial testimony to attribute 2.95 kilograms to Mendez, prompting his objection to a sentence grounded on a drug quantity not found beyond a reasonable doubt by the jury. Id. Concluding that the PSR accurately reflected facts proved by a preponderance of the evidence, the district court overruled the objection and sentenced Mendez to the low end of the applicable Guidelines range. See id. at 425 & n. 1. On appeal, a panel of this court rejected the defendant‘s Sixth Amendment right-to-trial-by-jury challenge, sanctioning the district court‘s use of acquitted conduct in calculating an advisory Guidelines range. Id. at 426-27 & n. 2. The Mendez panel reached this holding by relying on United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (per curiam), which the Supreme Court decided after Congress passed the Sentencing Reform Act (“SRA“).
Though Watts examined this issue from a double-jeopardy perspective, Watts regarded acquitted conduct as providing the sentencing court with “[h]ighly relevant—if not essential—information.” 519 U.S. at 151-52 (internal quotation marks omitted). Relying on the different standards of proof that govern at trial versus sentencing, the Court сoncluded “that a jury‘s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.” Id. at 157.
Watts preceded United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), but the Booker majority, which held that the mandatory guideline system was unconstitutional, viewed the two decisions as not inconsistent. Id. at 240-41. This circuit likewise recognizes Watts‘s continued vitality post-Booker, repeatedly holding “that sentencing courts may still find facts using the preponderance-of-the-evidence standard.” Mendez, 498 F.3d at 426-27 (citing, e.g., United States v. Gates, 461 F.3d 703, 708 (6th Cir.2006)); see also United States v. Brika, 487 F.3d 450, 458-60 (6th Cir.) (holding that Booker did not disturb Watts and that a post-Booker court may consider even acquitted conduct if it finds facts supporting that conduct by a preponderance of the evidence), cert. denied, 552 U.S. 936, 128 S.Ct. 341, 169 L.Ed.2d 239 (2007).
Mendez accords with the view expressed by each of our sister circuits that Booker did not alter the Watts position on acquitted conduct: ”Watts remains good law.” United States v. Magallanez, 408 F.3d 672, 684 n. 1 (10th Cir.2005); see, e.g., United States v. Faust, 456 F.3d 1342, 1348 (11th Cir.2006) (same);
The dissent sees things differently. It concedes that Watts survived Booker and that Watts rejected (and continues to reject) a Fifth Amendment double-jeopardy challenge to the use of acquitted conduct at sentencing. But it insists that Watts is irrelevant here because White premises his argument not on the Fifth Amendment, but on the Sixth Amendment. In one sense, the dissent is correct. As Booker itself recognized, Watts‘s rejection of a double-jeopardy challenge to the use of acquitted conduct at sentencing did not close the door on subsequent Sixth Amendment challenges to sentences based on judge-found facts. Booker, 543 U.S. at 240-41 & n. 4. Thus, although a court may properly look to facts underlying acquitted conduct in sentencing, the Sixth Amendment remains a backstop. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (“[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.“); see also Blakely v. Washington, 542 U.S. 296, 303-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) (same).
The dissent also is cоrrect in another sense. Had the district court in this case relied on acquitted conduct in determining the range under a mandatory guidelines regime, that sentence would have violated the Sixth Amendment as interpreted in Booker. For the same reason that Booker precluded district courts from finding sentencing facts that ratcheted up mandatory Guidelines ranges, it would have prevented district courts from doing the same thing with respect to findings related to acquitted conduct.
But these observations do not show that the Sixth Amendment prevents a district court from relying on acquitted conduct in applying an advisory guidelines system. In the post-Booker world, the relevant statutory ceiling is no longer the Guidelines range but the maximum penalty authorized by the United States Code. See United States v. Sexton, 512 F.3d 326, 330 (6th Cir.2008) (“Since defendants were sentenced under an advisory Guidelines scheme, the maximum statutory penalty that the district court could impose was determined by the statute of conviction, rather than by a Guidelines range calculated using only jury findings.“), cert. denied, 555 U.S. 830, 129 S.Ct. 304, 172 L.Ed.2d 222 (2008). This point too enjoys unanimity among the courts of appeals. See, e.g., Settles, 530 F.3d at 923 (“For Sixth Amendment purposes, the relevant upper sentencing limit established by the jury‘s finding of guilt is
Neither White nor the dissent offers any explanation why sentences based on acquitted conduct differ for Sixth Amendment purposes from any other sentence driven by judge-found facts but falling within the statutorily defined sentencing range. And they offer no explanation why that claim makes sense post-Booker. By freeing a district court to impose a non-guidelines sentence, Booker pulled out the thread that holds White‘s Sixth Amendment claim together.
The dissent also errs in saying that defendant is being sentenced to additional years “for three crimes the jury in its verdict said he did not commit.” The jury verdict says no such thing. It says something very different—that the conduct had not been proved beyond a reasonable doubt. Lawyers have long recognized the distinction between proof beyond a reasonable doubt—the standard for criminal conviction—and proof by a preponderance of the evidence—the standard for civil trials. Laypersons have become familiar with the distinction from the pair of O.J. Simpson trials, in which one jury found the crime not proved beyond a reasonable doubt, but another jury found civil liability by a preponderance of the evidence.
White thus is not being “sentenced for acquitted conduct” when White‘s sentencing judge takes that conduct into account in determining a sentence for the crime of which the White was convicted, as long as the sentence imposed falls within the range prescribed by law for that convicted conduct. Taking acquitted conduct into acсount unquestionably was permitted before the Guidelines were instituted, when a judge could sentence anywhere up to the maximum for convicted conduct, for any number of unstated reasons, including presumably a mere suspicion that the defendant also committed what the jury was not convinced of beyond a reasonable doubt. Taking acquitted conduct into account was not barred during the regime of mandatory Guidelines. See Watts, 519 U.S. at 151-52. Now that the Guidelines are advisory—a regime that floats between the previous two regimes—it seems particularly unusual to say that taking acquitted conduct into account all of a sudden is not permitted. It is permitted for the limited purpose of determining the sentence for convicted conduct, which must be shown by a preponderance of the evidence.
Nor does the dissent‘s reliance on the Canania decision advance its position. When a layperson such as Juror # 6 in the Canania case expresses frustration that the court system does not seem to respect the juror‘s contribution, the best response is not to confirm the misunderstanding; it is to explain that indeed the juror‘s contribution is being faithfully acted upon, that under our system judges have the power
We granted en banc review to decide whether the district court‘s consideration of acquitted conduct in sentencing passes constitutional muster. Our sister circuits agree that it does, insofar as enhancements based on acquitted conduct do not increase a sentence beyond thе maximum penalty provided by the United States Code. We follow suit, and in doing so affirm Mendez as the law of this circuit.
III
District of Columbia Circuit Judge Kavanaugh in the Settles case acknowledged that defendants understandably perceive unfairness when sentencing courts rely on acquitted conduct. 530 F.3d at 923-24. The Settles court observed that “Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.” Id. at 924.
To say that district court judges may enhance a defendant‘s sentence based on acquitted conduct, however, is not to say that they must do so. First, and most obviously, a factual presentation that fails to persuade a jury beyond a reasonable doubt may well fail to persuade a judge by a preponderance of the evidence. Second, one of the central points of Booker, highlighted by Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 564, 169 L.Ed.2d 481 (2007), is that a district court judge may disagree with the application of thе Guidelines to a particular defendant because the Guidelines range is too high or too low to accomplish the purposes set forth in
IV
We determine that the district court properly exercised its authority in sentencing White and thus affirm his conviction.
MERRITT, Circuit Judge, dissenting.
The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years. There are at least two related but independently sufficient reasons to reverse White‘s sentence. First, the reasonableness—and
My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court‘s opinion in United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997). The majority also misunderstands the Supreme Court‘s Apprendi-Blakely-Booker line of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.
After briefly explaining the sentencing facts of this case (facts glossed over in the majority opinion), I will set out the reasoning the majority should have followed. Because the sentence cannot be upheld as reasonable without accepting as true certain judge-found facts, the sentence represents an as-applied violation of White‘s Sixth Amendment rights and should be reversed. White‘s sentence, of course, is just one example of the widespread problem of using judge-found facts to calculate the applicable sentencing range under the Guidelines. In my view, the solution to this problem lies in the distinction between offense conduct, which must be found by the jury or admitted by the defendant, and offender characteristics, which may be found by the sentencing judge. Next, I turn to the broader question of acquitted conduct. Because there is no binding precedent on the issue of acquitted conduct and the right to trial by jury, we should address this open question by reference to the history and substantive protections of the jury-trial right. In so doing, I conclude that punishment for acquitted conduct poses unique constitutional problems and must be avoided.
I. Sentencing Facts
White was the driver of the getaway car in a Kentucky bank robbery. Two other people entered the bank and absconded with $101,000 after one of them threateningly discharged a firearm inside the bank without injuring anyone. White did not enter the bank or use a weapon. One of the robbers thereafter discharged a firearm from the car driven by White during the course of an extended high-speed police chase. White was charged with one count of conspiracy to commit armed bank robbery; one count of armed bank robbery; one count of conspiracy to use and carry a firearm in relation to a bank robbеry; two counts of aiding and abetting the use and discharge of a firearm; and one count of possession of a firearm with an obliterated serial number. He was convicted only of aiding and abetting armed bank robbery and possession of a firearm with an obliterated serial number. He was acquitted on the other four counts.
Although rejecting White‘s defense of duress, the jury acquitted him of Count 1, charging him with conspiracy to rob the bank. More importantly for purposes of this case, the jury acquitted him of Counts 3, 4, and 5, charging respectively a conspiracy to use and carry a firearm and two substantive counts of aiding and abetting the “using, carrying, brandishing and discharging” of a firearm in the robbery. In other words, White was convicted of bank robbery but acquitted of all counts charging him with the use of weapons in connection with the robbery. Despite the acquittal of the use-of-weapons charges, the sentencing judge increased the sentence
The parties agree that White‘s base offense level was 20 with no prior criminal record, an offense level carrying a recommended sentencing range of 33 to 41 months in prison. The jury found that a financial institution was robbed, triggering a two-level increase, and that more than $50,000 but less than $250,000 was taken, triggering another two-level increase, bringing the offense level to 24 (carrying a recommended sentence range of 51 to 63 months). These findings were a part of the jury verdict, and White does not challenge them or the resulting calculations.
In addition, based on the jury verdict rejecting White‘s testimony that he was forced to participate in the robbery, the sentencing judge increased the offense level by two levels for perjury, from level 24 to level 26. The judge also found that the extended police chase during which White drove the car through a road block and then crashed the car into another police road block endangered lives and deserved an additional two-level increase, bringing the offense level up to 28, which carries a recommended sentencing range of 78 to 97 months. The two-level enhancement for perjury is implicit in the jury‘s verdict rejecting White‘s testimony that he was forced or coerced into participating in the bank robbery as a getaway driver. The jury could not have reached its verdict if it had believed White‘s testimony. Thus, the perjury adjustment is based on a jury finding. During his testimony, White expressly admitted that he drove the car in a high-speed police chase (as the previous panel of our court found) “ending when White crashed his car into a road block, and the car burst into flames.”
White‘s challenge to his sentence stems from the additional ten-level increase found by the sentencing judge: a seven-level increase imposed by the sentencing judge for aiding in another robber‘s discharge of a weapon inside the bank—a specific charge in the conspiracy and substantive counts that the jury acquitted him of—and a three-level increase for aiding another robber in firing “at least two gunshots at a pursuing police car“—another specific charge for which White was acquitted. The resulting offense level of 38 carried a recommended sentencing range of 235 to 293 months, and the judge sentenced White to 264 months, or 22 years. The two judicial upward adjustments for acquitted charges account for approximately 14 years of the 22-year sentence.
II. The Sixth Amendment and Judicial Factfinding
A. As-Applied Violations
Over the past decade, the Supreme Court has begun the process of bringing sentencing guidelines, state and federal, into line with the Sixth Amendment and
In United States v. Booker, 543 U.S. 220, 258-65, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Court applied the Apprendi-Blakely framework to the United States Sentencing Guidelines and determined that the section of the Sentencing Reform Act that made the Guidelines mandatory violated the Sixth Amendment and needed to be excised. The Court said in Booker: “More important than the language used in our holding in Apprendi are the principles we sought to vindicate.... They are not the product of recent innovations in our jurisprudence, but rather have their genesis in the ideals our constitutional tradition assimilated from the common law.” Id. at 238. This language echoed the reasoning of Blakely:
Our commitment to Apprendi in this context reflects not just respect fоr longstanding precedent, but the need to give intelligible content to the right to jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. Just as suffrage ensures the people‘s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. 542 U.S. at 305-06.
Whether the Court‘s solution in Booker actually resolved the Sixth Amendment problem posed by the Sentencing Guidelines is debatable.1 But it is clear that the post-Booker development of reasonableness review has opened the door for Sixth Amendment challenges to sentences within the statutory range authorized by the jury‘s verdict. In their concurring opinion in Rita v. United States, 551 U.S. 338, 127 S.Ct. 2456, 2477, 168 L.Ed.2d 203 (2007) (Scalia, J., concurring in part and concurring in the judgment), Justices Scalia and Thomas explained how substantive-reasonableness review would inevitably produce sentences whose legitimacy turns on the existence of certain facts, which, under the Sixth Amendment, must be found by a jury or admitted by the defendant. They illustrate the point with the following hypothetical:
[T]he base offense level for robbery under the Guidelines is 20, which, if the defendant has a criminal history of I, corresponds to an advisory range of 33-41 months. If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, producing an advisory range of 235-293 months. When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district
judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentencе would surely be reversed as unreasonably excessive. Id. at 2477.
Thus, “for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant,” from which it follows that “[e]very sentence higher than that is legally authorized only by some judge-found fact,” a sentencing process that is unlawful because all facts needed to authorize a sentence “must be found by the jury beyond a reasonable doubt in order to give intelligible content to the right of jury trial.” Id. (quoting in part Blakely, 542 U.S. at 305).
The majority in Rita avoided this point as a mere hypothetical that did not need to be addressed at the time. See id. at 2466. But the case at hand raises this very issue, and we must address it now. White‘s sentence is arguably even more problematic than the sentence in the hypothetical because the jury actually acquitted White of the conduct that led to more than half of his sentence, but the Sixth Amendment violation is identical. White‘s 22-year sentence is made possible only by reference to judge-found facts about the discharge of firearms during the crime. Absent those facts, the recommended Guidelines range would be 78 to 97 months. Against that backdrop, a 264-month sentence would certainly be reversed as unreasonable. As such, those judge-found facts are necessary for the lawful imposition of the sentence, thus violating the Sixth Amendment right to a jury trial: “[E]xcessive sentences within the statutory range, and the ability of appellate courts to reverse such sentences, inexorably produces, in violation of the Sixth Amendment, sentences whose legality is premised on a judge‘s finding some fact (or combination of facts) by a preponderance of the evidence,” id. at 2476. Therefore, White‘s sentence must be reversed.
B. Offense/Offender Distinction
To ensure that such unconstitutional sentences are not imposed in the future, district courts should calculate the applicable Guidelines range by relying only on facts, other than a prior conviction, that have been found by a jury or admitted by the defendаnt. However, I recognize the value of some judicial factfinding—with indeterminate, non-mathematical consequences—for the purpose of creating individually tailored sentences. Therefore, I conclude that our Court, and federal courts generally, should follow the “offense/offender” distinction offered by Justices Kennedy and Breyer in their separate opinion in Cunningham v. California, 549 U.S. 270, 296-97, 127 S.Ct. 856 (2007), a solution suggested in a law review article cited in their opinion, Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 OHIO ST. J. CRIM. L. 37, 55-58 (2006). In short, offense conduct must be defined by the defendant‘s admissions and the jury‘s verdict. Offender characteristics, on the other hand, may be found by a judge.
By attaching the jury-trial right to crimes, rather than to any and all decisions related to the accused, the constitutional text suggests a basis for the distinction between offense conduct and offender characteristics. See Douglas A. Berman, Conceptualizing Blakely, 17 FED. SENT‘G REP. 89, 89 (2004). The distinction also reinforces “the distinctive institutional competencies of juries and judges, and the distinctive judicial ambit of trial and sentencings.” Id. In their dissent in Cunningham, Justices Kennedy and Breyer
In other words, whenever offense fаcts have fixed and predictable sentencing consequences, then the jury, as the preferred fact-finder, must pass on them. Judges remain authorized, however, to consider a range of facts as part of exercising reasoned judgment at sentencing. Berman & Bibas, supra, at 58 (relying on Williams v. New York, 337 U.S. 241, 251, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949), which states that an indeterminate sentencing system that takes rehabilitation and specific deterrence goals seriously enables judges to exercise “their judgment” without violating the Constitution).
The law professors conclude their article as follows:
The modest vision of constitutional sentencing law set forth would preserve the jury‘s core function. At the same time, it would leave healthy room for other actors and jurisdictions to experiment and find workable solutions. Reasoned sentencing opinions would over time develop into a common law of sentencing, as diverse judges articulated consensus views about which factors should matter. Reasoned opinions would be more transparent than federal mathematical mumbo-jumbo. Id. at 71.
A rule foreclosing the judicial determination of offense conduct does not necessarily mean that the trial judges in sentencing must forget the evidence they heard at the jury trial. On the offender characteristics side of the divide, sentencing judges may consider all that they have heard when it comes to Williams-era-style, indeterminate assessments of defendants’ prospects for rehabilitation, risk of future harmful conduct, and other similar considerations. In this case, however, it is clear that the sentencing judge erred in assessing a fixed, determinate, 14-year sentence enhancement based on judge-found offense conduct. The sentence must, therefore, be reversed.
III. The Use of Acquitted Conduct
The second sufficient reason to reverse White‘s sentence is that it relies on acquitted conduct, a subset of judge-found facts that raises a host of unique concerns. See United States v. Canania, 532 F.3d 764 (8th Cir.2008) (Bright, J., concurring) (“[T]he unfairness perpetuated by the use of ‘acquitted conduct’ at sentencing in federal district cоurts is uniquely malevolent.“). The majority asserts that United States v. Watts is controlling. After noting that Watts survived Booker—a proposition that I do not dispute—the majority implies that we would be overruling the Supreme Court even to treat the question presented here as an open one. But the question to
A. Watts
In United States v. Booker, the Court explained that “in Watts ... we held that the double jeopardy clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.” 543 U.S. at 240. The Court then held that Watts is irrelevant to the issue of the use of acquitted conduct generally or under the Sixth Amendment because in Watts there was no “contention that the sentence enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth Amendment. The issue ... simply was not presented.” Id. The Court then went on to explain:
Watts, in particular, presented a very narrow question regarding the interaction of the Guidelines with the double jeopardy clause, and did not even have the benefit of full briefing or oral argument. It is unsurprising that we failed to consider fully the issues presented to us in these cases. Id.
The majority‘s simple and single-minded reliance on Watts as authority for enhancements based on acquitted conduct is obviously a mistake. It is a mistake that other federal circuit courts have also made,2 but it is a mistake nonetheless. Therefore, we should treat this as an open question and consider whether the use of acquitted conduct to increase criminal sentences is permitted.
B. Acquitted Conduct and Constitutional History
It is hard to overemphasize the importance of trial by jury for our revolutionary ancestors who wrote the Declaration of Independence, framed the Constitution, ratified it in state conventions, and explained it in the Federalist Papers.3 Suf-
Our case law over the last 200 years has repeatedly emphasized this point. As the Supreme Court explained in Apprendi:
As a general rule, criminal proceedings were submitted to a jury after being initiated by an indictment containing “all the facts and circumstances which constitute the offence, ... stated with such certainty and precision, that the defendant ... may be enabled to determine the species of offence they constitute, in order that he may prepare his defence accordingly ... and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.” J. ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL CASES 44 (15th ed. 1862). The defendant‘s ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. See 4 BLACKSTONE 369-370 (after verdict, and barring a defect in the indictment, pardon, or benefit of clergy, “the court must pronounce that judgment, which the law hath annexed to the crime“). 530 U.S. at 478-79; see also id. at 510 (Thomas, J., concurring) (citing a leading treatise on criminal procedure at common law, which stated that “the indictment must ... contain an averment of every particular thing which enters into the punishment“) (quoting 1 J. BISHOP, LAW OF CRIMINAL PROCEDURE § 80, at 51 (2d ed. 1872)).
In other words, it has long been required that all offense-related facts underlying the sentence first be “stated with certainty and precision” in the indictment and then proved beyond a reasonable doubt to the jury. To permit facts rejected by the jury to serve as the basis for the sentence would sever “the invariable linkage of punishment with crime.” Furthermore, we should remember that when Blackstone, quoted above, published his treatisе in the 1760s, the English-speaking people had enjoyed the right of trial by jury in criminal cases for more than 500 years, and common law lawyers and judges, from Bracton in 1250 to Lord Coke in 1620 to Blackstone, had come to revere their unique institution of liberty. See 2 BRACTON ON THE LAWS AND CUSTOMS OF ENGLAND 386-87 (George E. Woodbine ed., Samuel E. Thorne trans., 1968) (explaining, in the thirteenth century, that a criminal defendant “has the power of choosing whether to place himself on a jury or defend himself by his body“).
Perhaps it will be contended that the use of acquitted conduct does not violate the right to trial by jury because, in a literal sense, a defendant is still tried by a jury, even when parts of its verdict is ignored during sentencing. The Founders were keenly aware, though, that “the jury right could be lost not only by gross deni-
Allowing the use of acquitted conduct at sentencing also eviscerates the jury‘s longstanding power of mitigation, a close relative of the power of jury nullification. As the Supreme Court has noted:
The potential or inevitable severity of sentences was indirectly checked by juries’ assertions of a mitigating power when the circumstances of a prosecution pointed to political abuse of the criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and Crown took the form not only of flat-out acquittals in the face of guilt but of what today we would call verdicts of guilty to lesser included offenses, manifestations of what Blackstone described as “pious perjury” on the jurors’ part. Id. at 245 (quoting 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 238-39 (1769)).
The “power to mitigate or nullify the law in an individual case is no accident. It is part of the constitutional design—and has remained part of that design since the Nation‘s founding.” Rachel E. Barkow, Recharging the Jury: The Criminal Jury‘s Constitutional Role in an era of Mandatory Sentencing, 152 U. PENN. L. REV. 33, 36 (2003). A jury cannot mitigate the harshness of a sentence it deems excessive if a sentencing judge may use acquitted conduct to sentence the defendant as though he had been convicted of the more severe offense.
This common law heritage is reflected in the fact that the overwhelming majority of states do not use acquitted conduct at sentencing.5 Those who have surveyed the state sentencing systems, including Phyllis J. Newton, the previous Staff Director of the U.S. Sentencing Commission, and John Steer, recently retired General Counsel and Vice Chair of the Commission, now concede that states have not followed the Commission in allowing acquitted conduct to mechanically ratchet up sentences and that the federal court‘s use of acquitted conduct in calculating an advisory sentencing range should be disсontinued.6 See, e.g., Phyllis J. Newton, Building Bridges
C. The Sentencing Reform Act of 1984
The Sentencing Rеform Act of 1984 itself reflects the same type of offense/offender distinction described above and should be read to foreclose the use of acquitted conduct at sentencing. As to offense conduct, the statute requires that the defendant be “convicted” of the offense and does not allow the use of acquitted conduct. Congress provided a “convicted” offense sentencing system just as the states have created and just as the common law and the Constitution contemplate. In the Act that created the Sentencing Commission and defined its authority, the Commission “in establishing categories of offenses for use in the Guidelines” may use “the circumstances under which the offense was committed.”
On the other hand, on the offender characteristics side of the Guideline calculation, the section of the statute following the section confining offense conduct to “convicted” conduct, instructs the Commission and the courts to consider an open-ended set of aggravating and mitigаting offender characteristics including eleven specified “matters,” such as “age,” “vocational skills,” “drug dependence,” “livelihood,” and “criminal history.”
There remains the overall question under the statute: How does this 14-year sentence enhancement based on acquitted conduct “promote respect for law?” A recently reported incident in the District Court in Washington, D.C., recounted by Judge Bright in his concurring opinion in United States v. Canania, 532 F.3d 764 (8th Cir.2008), answers that question. A jury had acquitted the defendant of several counts of the indictment while convicting him on one count. When it learned that the judge was considering sentencing him for the acquitted conduct, a juror wrote the judge a letter as follows:
It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all
took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on. Eventually, through every hour-long tape of a single drug sale, hundreds of pages of transcripts, ballistics evidence, and photos, we delivered to you our verdicts. What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been have been found guilty but on the charges for which the District Attorney‘s office would have liked them to have been found guilty. Had they shown us hard evidence, that might have been the outcome, but that was not the case. That is how you instructed your jury in this casе to perform and for good reason.
May 16, 2008 Letter from Juror # 6 to The Honorable Richard W. Roberts, available at http://video1.washingtontimes.com/video/docs/letter.pdf (last accessed July 3, 2008).
This juror‘s reaction is the same, I believe, as the reaction that the drafters of the Declaration of Independence, the Constitution, and the Sentencing Reform Act of 1984 would have upon learning of this 14-year additional sentence for acquitted conduct imposed on the defendant here.
In re Jason SANDERS, Debtor.
Krispen S. Carroll, Chapter 13 Trustee, Appellant, v. Jason Sanders, Appellee.
No. 08-1201.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 9, 2008. Decided and Filed: Dec. 29, 2008.