A look at the use of acquitted conduct in sentencing.

• Author: Beutler, Erica K.
• Position: Supreme Court Review - Case Note

United States v. Watts, 117 S. Ct 633 (1197) (per curiam)

1. INTRODUCTION

   In United States v. Watts,(1) the United States Supreme Court addressed whether sentencing courts, when determining a convicted defendant's sentence, may consider conduct relating to charges of which the defendant was acquitted. The Court held that a "not guilty" verdict does not preclude a sentencing court from considering the conduct underlying the acquitted charge so long as that conduct is proved by a preponderance of the evidence.(2) In so doing, the Court resolved a circuit split in which the Ninth Circuit alone maintained that a sentencing court may not consider acquitted conduct.(3) However, as Justice Kennedy pointed out in his dissent, the Court left several matters unresolved.(4) For example, the Court did not address concerns about undercutting a verdict of acquittal, the distinction between uncharged conduct and conduct related to a charge for which the defendant was acquitted, nor the effect of the Sentencing Reform Act of 1984 on this issue.(5)

   This Note argues that the Court's decision also ignored important constitutional considerations. The use of acquitted conduct in sentencing raises due process and double jeopardy concerns that deserved far more careful analysis than they received. The fundamental differences between uncharged and acquitted conduct which trigger these constitutional concerns should have been noted and discussed. Finally, this Note asserts that the United States Sentencing Commission has the authority to amend the United States Sentencing Guidelines, even to the extent it proposes a change contrary to the Court's decision with regard to acquitted conduct.

2. BACKGROUND

   1. THE UNITED STATES SENTENCING GUIDELINES

      1. History

         Before the promulgation of the United States Sentencing Guidelines(6) federal judges exercised liberal and virtually unreviewable(7) discretion in sentencing.(8) Stemming from the differences in judges sentencing philosophies, this breadth of discretion led to a wide unwarranted disparity in sentences imposed on defendants convicted of similar crimes.(9) While the federal courts lacked a uniform system of sentencing, many judges took into account the reality that the defendant typically would be paroled after serving only one-third of his or her sentence.(10) Anticipating parole, these judges regularly sentenced offenders to much longer terms than they actually intended the individuals to serve.(11)

         Concerned about the implications of incongruous sentencing results and the uncertainty caused by indeterminate sentencing,(12) Congress passed the Sentencing Reform Act of 1984 (the Act).(13) By establishing uniform rules to guide the federal courts in sentencing, Congress hoped the Act would correct the gross disparities in sentencing, infuse a sense of proportionality, and restore systemic integrity by requiring courts to impose sentences that offenders would actually serve.(14) Toward these ends, Congress also provided for appellate review of sentencing(15) and abolished the parole system.(16)

         The Act created the United States Sentencing Commission as an independent agency in the judicial branch.(17) The Commission was "comprised of seven members (including three federal judges) appointed by the President, confirmed by the Senate, and instructed to write, by April 1987, sentencing guidelines which would automatically take effect six months later unless Congress passed another law to the contrary."(18)

         The federal judiciary initially greeted the Guidelines with hostility.(19) It was not until the Supreme Court upheld their constitutionality in United States v. Mistretta(20) that the federal courts began imposing the Guidelines in earnest.(21)

      2. How the Guidelines Work

         Determination of an offender's sentence typically begins with a recommended sentence from the probation department.(22) The probation department includes its recommendation in the pre-sentence investigation report it prepares, in which it describes the circumstances of the offense and the history of the offender.(23) A probation officer will determine an offender's sentencing guideline range according to the mandates limned in the Sentencing Guidelines.(24)

         The Guidelines assign a "base offense level" to each type of conviction.(25) Determining the base offense level is the first step in calculating an individual's sentencing range.(26) To ascertain the base offense level, one must locate the offense in the Guidelines Manual.(27) This can be done by referencing the manual's statutory index.(28)

         The next step is to add the "specific offense characteristics."(29) Every offense category carries "specific offense characteristics" which must be assessed in calculating the base offense level.(30) The base offense level is then adjusted to reflect any mitigating or aggravating circumstances that might apply under the Guidelines.(31) The result is an "adjusted offense level."(32)

         Finally, in order to find the appropriate guideline range on the Sentencing Table,(33) the probation officer must determine the defendant's "criminal history category."(34) The Sentencing Table is a matrix with forty-three offense levels listed on the vertical axis and six criminal history categories listed on the horizontal axis.(35) The point at which the defendant's offense level and criminal history category meet when plotted on the 258-box grid shows the recommended sentencing range (in terms of months of imprisonment) for that individual.(36)

         Once calculated, the probation department gives its recommendation to the sentencing judge and a sentencing hearing is held at which both the prosecution and the defendant may argue whether the probation officer's determinations are correct.(37) Based on the probation officer's report and the arguments of both parties, the judge ultimately decides the applicable range under the guidelines.(38) The judge usually will select a term from within what she has determined to be the appropriate guideline range; however, she may depart from it if there is sufficient reason to do so.(39) In any event, the judge may neither exceed the statutory maximum nor fall below the statutory minimum (if one exists) for the crime of conviction.(40)

      3. Relevant Conduct

         In 1970, during the era of individualized sentencing, Congress enacted 18 U.S.C. [sections] 3661,(41) "which codifies the longstanding principle that sentencing courts have broad discretion to consider various kinds of information" that may otherwise be inadmissible as evidence.(42) The Guidelines incorporated the language of [sections] 3661 into sections 1B1.3 and 1B1.4, which define relevant conduct under the Guidelines.(43) In Witte v. United States, the Supreme Court explained that the relevant conduct provisions were "designed to channel the sentencing discretion of the district courts and to make mandatory the consideration of factors that previously would have been optional."(44)

         Relevant conduct as explained in the Guidelines describes the conduct a sentencing judge may take into account when formulating a sentence.(45) It includes an array of activity, usually

         considered to be unlawful acts or omissions, that occurred in relation to the offense of conviction (not including the activity constituting the offense of conviction itself) deemed pertinent to assessing the defendant's culpability.(46) When determining the applicable guideline range, a sentencing court may consider conduct that is neither formally charged nor is an element of the offense of conviction.(47)

         Uncharged or unadjudicated conduct--acts potentially characterized as criminal for which the offender's legal guilt has not been formally adjudicated--clearly falls within this rubric.(48) However, acquitted conduct is distinct from unadjudicated conduct, and less clearly within the court's purview at sentencing.(49) Acquitted conduct refers to "acts for which the offender was criminally charged and formally adjudicated not guilty, typically by the finder of fact after trial."(50) Use of acquitted conduct occurs when the sentencing judge relies on such acts as justification for enhancing the defendant's sentence.(51)

         A judge must examine conduct surrounding the offense of conviction to determine whether an increase or decrease in the sentencing range is warranted.(52) Consideration of relevant conduct is no longer discretionary but mandatory--a judge's failure to review relevant conduct is grounds for reversal.(53) Although the courts regularly consider acquitted conduct within the scope of relevant conduct for sentencing purposes, whether acquitted conduct ought to be treated as relevant conduct under the Guidelines is much debated by scholars.(54)

         Although the Guidelines contain no specific language authorizing the use of acquitted conduct in sentencing, the courts have broadly construed the language and commentary of sections 1B1.3 and 1B1.4 to allow such evidence.(55) These provisions make clear that the courts may consider a broad range of conduct for which the defendant was not convicted.(56) There is no limiting language indicating that acquitted conduct should be treated any differently from other forms of unconvicted conduct.(57) Furthermore, pre-Guidelines case law predominantly held that a sentencing judge could consider acts for which the defendant had not been charged or convicted, including acquitted conduct.(58) Thus, courts can legitimately support their conclusions with regard to the use of acquitted conduct in sentencing, and they have continually done so.(59) However, the fact remains that acquitted conduct differs from other unconvicted conduct in that it represents a legal conclusion of innocence with regard to the criminality of that conduct.(60)

      4. Real Offense vs. Charge Offense System

         The Sentencing Commission looked at two basic sentencing models in structuring the Guidelines.(61) One, a "charge offense" system,(62) links punishment directly to the offense of...