Those of us that handle federal criminal cases are closely watching a case that is currently before the Supreme Court concerning the use of acquitted conduct at sentencing. The case, Asaro v. United States, which the Court has not yet decided it will hear, provides the Court with an opportunity to revisit its holding in United States v. Watts.
The background in Watts is fairly straightforward. In Watts, the defendant was charged with a drug offense and a separate offense involving a firearm. At trial, the jury acquitted Watts of the firearm offense but convicted him of the drug offense. However, although Watts was found not guilty of the firearm related offense, the court that sentenced Watts concluded that it was permissible for courts to nonetheless hold defendants like Watts responsible for conduct for which they have been acquitted, as long as the government can establish the various factual prerequisites on the acquitted conduct by a preponderance of the evidence. Finding that the government had indeed satisfied that standard in Watts, the lower court applied a firearm enhancement against Watts and increased his sentence, despite the jury’s conclusion that Watts was not guilty of the firearm related conduct. Although the lower court’s decision was reversed on appeal, the Supreme Court, in a 7-2 ruling, reinstated the lower court’s decision in Watts.
Not surprisingly, the Court’s decision in Watts received a great deal of criticism on a number of grounds. On its face, the idea that one can be held accountable for conduct for which one has been acquitted not only appears to offend the basic and fundamental Sixth Amendment right to a jury trial, but it also seems to be plainly unfair. Significantly, though, over 15 years after the Court’s decision in Watts, Justice Scalia (joined by Justice Thomas and Justice Ginsburg) urged the Court to reconsider its decision in Watts. Unfortunately, however, on that particular occasion and others, the Court has been unable to gather the 4 votes that are needed in order for the Court to accept a case that would allow it to revisit this issue.