Sentencing Class @ OSU Moritz College of Law

Justice Breyer's Watts concurrence and the challenge of better guideline drafting

I made brief mention in class of Justice Stephen Breyer's concurrence in Watts, and I thought it might be useful to quote all of it here as the prelude to an (extra credit) challenge:

I join the Court’s per curiam opinion while noting that it poses no obstacle to the Sentencing Commission itself deciding whether or not to enhance a sentence on the basis of conduct that a sentencing judge concludes did take place, but in respect to which a jury acquitted the defendant.

In telling judges in ordinary cases to consider “all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction,” United States Sentencing Commission, Guidelines Manual § 1B1.3(a)(2) (Nov. 1995) (USSG), the Guidelines recognize the fact that before their creation sentencing judges often took account, not only of the precise conduct that made up the offense of conviction, but of certain related conduct as well. And I agree with the Court that the Guidelines, as presently written, do not make an exception for related conduct that was the basis for a different charge of which a jury acquitted that defendant. To that extent, the Guidelines’ policy rests upon the logical possibility that a sentencing judge and a jury, applying different evidentiary standards, could reach different factual conclusions.

This truth of logic, however, is not the only pertinent policy consideration. The Commission in the past has considered whether the Guidelines should contain a specific exception to their ordinary “relevant conduct” rules that would instruct the sentencing judge not to base a sentence enhancement upon acquitted conduct. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 57 Fed. Reg. 62832 (1992) (proposed USSG § 1B1.3(c)). Given the role that juries and acquittals play in our system, the Commission could decide to revisit this matter in the future. For this reason, I think it important to specify that, as far as today’s decision is concerned, the power to accept or reject such a proposal remains in the Commission’s hands.

Here is the (extra credit) challenge for members of the class: Can/will someone propose in the comments a formal US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted conduct (which may or may not also cover uncharged conduct of the sort at issue in Fitch)? 

(Note:  The US Sentencing Commission has, in fact, never formally proposed an "acquitted conduct" provision in response to Watts.)

In addition to being eager to see student efforts to draft a provision of the US Sentencing Guidelines provision to limit the authority of federal sentencing judge to enhance a sentence on the basis of acquitted (and/or uncharged) conduct, I wonder if folks think that, now that Booker has made the guidelines advisory, the "problem" in Watts is now better (or worse).

Specific interest in particular offense conduct and offender characteristics as sentencing factors

Though I am prepared and eager to discuss whichever offense conduct and offender characteristics that students find most interesting as sentencing factors, there are a few factors that I want to give special attention in our class on March 10.  Specifically, in class I will be especially eager to hear your thoughts on these potential sentencing factors:

Offense conduct:  

A.  Role in the offense

B.  Number of images in child porn downloading offense 

C.  Amount of money "at risk" in credit card identity theft

Offender characteristics:

D.  Age

E.  Drug dependence

F.  Military service

Especially if you have strong and/or unique perspectives on any or all of these sentencing factors, feel free to start sharing your views in the comments to this post and be certain to raise you hand and your voice in our coming classes.

Some twists on consideration of acquitted conduct

There are too many stories that surround the concept of acquitted conduct to cover them all, but I wanted to provide some links to some of these stories as recently covered in my main blog for anyone interested in continuing to think about these issues of what offense conduct can/should be considered at sentencing.  Here are just a sample of some coverage:

• Practitioner’s Note: Acquitted Conduct in the News (Again)
• Judge Bright urges SCOTUS attention to acquitted conduct enhancement
• New academic paper on acquitted conduct after Booker
• Amicus brief in Sixth Circuit acquitted conduct case focused on statutory issues
• A terrific district court opinion on acquitted conduct
• Strong commentary on acquitted conduct sentencing
• Sincere questions about acquitted conduct sentencing

And, providing an example of the different settings in which this issue can arise is an interesting new Second Circuit ruling in Vega v. Lantz, No. 08-4748 (2d Cir. Mar. 2, 2010) (available here).  In Vega, the panel reverses a district court's ruling granting relief to a Connecticut inmate who complained about his designation as a sex offender based on the fact that he had been acquitted of sexual assault (though convicted of first-degree assault and kidnapping) after horribly abusing a "sixteen-year-old girl, with whom he had a sexual relationship, when he was twenty-nine-years old."