6th Circuit: Acquitted Conduct & Booker
Acquitted Conduct in the Post-Booker World
The Sixth Circuit has decided to examine, en banc, whether a defendant’s sentence
can be increased based on conduct that the jury acquitted him of, in light of Booker.
In United States v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted, op.
withdrawn, 2007 U.S. App. LEXIS 28902 (6th Cir. Nov. 30, 2007), the defendant was
convicted on two counts and acquitted on four other counts. Had the district court
based the sentence on the offense of conviction, the sentencing range would have been
108 to 135 months. Nevertheless, the district court included the acquitted conduct,
which included a co-defendant’s alleged use of a gun during the robbery, and
enhanced the sentence to 264 months. A panel of the Sixth Circuit, by a 2 to 1 vote,
reversed the upward adjustment in light of Booker.
However, because another panel had previously reached the opposite conclusion,
see United States v. Mendez, 498 F.3d 423 (6th Cir. 2007), the White panel “agreed to
affirm the sentence to avoid a conflict, but “strongly recommended that counsel for
defendant file a petition for en banc rehearing on the question of whether the
continuing use of acquitted conduct as a sentencing enhancement violated Booker.”
Defense counsel did just that, and the matter will be considered by the full Sixth
In a Supplemental Amici Curiae Brief, submitted by “Law Professors Who Study
Federal Sentencing,” it is argued that before a district court enhances a sentence based on acquitted conduct, it should consider the enhancement under the requirements of §3553(a), particularly in light of Booker, which “makes these considerations critical now that the Guidelines are advisory.”
Two specific requirements of §3553(a) are highlighted in the brief: (1) the need
for the sentence to “promote respect for the law;” and (2) the need for the sentence to “provide just punishment for the offense.” The brief argues:
In some cases it is possible that an enhancement based on acquitted conduct
under the Guidelines will be so modest that an increased punishment still
could “promote respect for the rule of law” or “ provide just punishment for
the offense.” In other situations, however, where the acquitted conduct
enhancement is substantial . . . there is a significant risk that the §3553(a)
purposes will be disserved.
Consequently, if you are representing a defendant who falls into the situation
where they will be hammered at sentencing by an acquitted-conduct enhancement,
object to the enhancement to preserve the issue.
Another recent Sixth Circuit case, United States v. Conway, 2008 U.S. App.
LEXIS 1774 (6th Cir. 2008), offers an extended discussion on the distinction between
enhancements based on dismissed conduct and those based on acquitted conduct.