Federal Criminal Sentences May Be Enhanced by Acquitted Conduct

Did you know that, even after a jury has acquitted a criminal defendant of charged crimes, a federal court judge may still consider that conduct at sentencing? This unfair and disrespectful-to-juries rule of law is barred by nearly every state, but is permissible in federal courts. We hope the U.S. Supreme Court will soon correct the situation on appeal from a recent Sixth Circuit case.

The Eleventh Circuit Court in Atlanta, Georgia has addressed this injustice and permitted it to continue. In July 2006, the court issued an opinion in U.S. v. Faust, a case in which Nathan Faust had been convicted of possession with the intent to distribute cocaine, but acquitted of possession with the intent to distribute ecstasy and two gun charges. In calculating Faust’s sentence, the District Court determined the initial Sentencing Guidelines range by including the 94 grams of ecstasy that Faust had been acquitted of possessing. The Court then added two more levels to his sentence for possession of a dangerous weapon, despite his acquittal on the gun charges. Faust objected on the basis of his acquittal, but the Court overruled his objection, stating that the Guidelines were advisory and its calculations were based on a preponderance of the evidence.

Faust appealed his sentence on several grounds, one of which being the Sixth Amendment right to a jury trial. He argued that even when the Sentencing Guidelines are applied in an advisory manner, the Sixth Amendment right to a jury trial prohibits courts from considering relevant conduct for which a defendant was acquitted when making sentencing calculations. The Eleventh Circuit rejected his argument because both Eleventh Circuit and Supreme Court precedent allowed such consideration when the relevant conduct was proved by a preponderance of the evidence. Judge Barkett wrote a lengthy special concurrence stating that she concurred in the decision only because she was bound by Eleventh Circuit precedent, further saying that she “strongly believe[s] this precedent is incorrect” and that the Supreme Court precedent cited by the majority opinion has no bearing on this case. She concludes her concurrence with, “I do not believe the Constitution permits this cruel and perverse result.”

The Faust opinion is available here.

In the recent Sixth Circuit case, Roger Clayton White was the getaway driver for a bank robbery committed by his brother and an accomplice. He led the police on a lengthy car chase, which ended when White crashed into a roadblock. White was convicted of armed robbery and possessing a firearm with the serial number removed. The court considered acquitted conduct in calculating his sentence, including discharging a firearm during the robbery and assaulting a law enforcement officer during flight. This consideration of acquitted conduct resulted in White’s sentence nearly tripling, from 8 years in prison to 22. The Sixth Circuit, sitting en banc, affirmed the sentence, stating that the sentence passed constitutional muster because it did not increase the sentence beyond the statutory maximum for the convicted crime.

The White opinion is available here.

White’s attorney has said that the case will be appealed to the United States Supreme Court. Let’s hope they take the case and correct this shocking and unconstitutional rule of law.

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