Sentencing acquitted conduct to the post-Booker dustbin.

• Author: Bilsborrow, James J.

TABLE OF CONTENTS INTRODUCTION I. THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL A. A Brief History of the Right to a Jury Trial B. The Functional Operation of the Jury II. THE MODERN SENTENCING SYSTEM A. Pre-Guidelines: A World of Indeterminacy B. The Guidelines Are Born: A World of Determinacy C. Acquitted Conduct Under the Guidelines Regimes III. HOW THE COURT GOT ITS SIXTH AMENDMENT GROOVE BACK IV. BOOKER'S FALLOUT: THE SAME OLD ACQUITTED CONDUCT STORY V. THE END OF ACQUITTED CONDUCT A. Acquitted Conduct: The Quintessential Unauthorized Punishment B. The Sixth Amendment Concerns 1. Saved by the New Statutory Ceiling? C. As if the Constitutional Objections Were Not Enough--Policy Considerations CONCLUSION INTRODUCTION

Robert Mercado was an alleged member of the Mexican mafia operating in Los Angeles. (1) He was charged, tried by a jury, and subsequently convicted on various counts of drug conspiracy. (2) Based upon his drug convictions, the federal Sentencing Guidelines ("Guidelines") recommended a punishment of thirty to thirty-seven months' imprisonment. (3) Additionally, Mercado was charged and acquitted of several violent offenses, including participation in three murders, commission of violent crimes in the aid of racketeering, and assault with a deadly weapon. (4) At Mercado's sentencing, however, the district judge set aside the jury's acquittals with respect to the violent crimes, finding "beyond a reasonable doubt that [Mercado] had participated in the murders and conspiracies to murder of which [he] had been acquitted." (5) As a result of the judge's singular sentencing determination, Mercado received a twenty-year sentence, increasing the punishment recommended by the Guidelines--and the jury verdict--by over seventeen years. (6)

Although the sentencing determination in Mercado's case may strike many nonlawyers as confusing, (7) or as some judges have characterized it, "Kafka-esque," (8) the practice is not unusual. (9) In fact, judges have long considered acquitted conduct--defined in this Note as conduct for which an offender has been charged and found not guilty by a jury--when fashioning a defendant's sentence. (10) Furthermore, the Supreme Court specifically sanctioned the practice in 1997 in United States v. Watts. (11) Arguably, the Watts ruling was consistent with over fifty years of sentencing jurisprudence, in which the Court repeatedly declined to extend the trial phase's procedural protections to sentencing, (12) instead preferring to allow judges broad access to offender information in an attempt to craft an individualized sentence. (13) As Watts indicated, acquitted conduct is "'[h]ighly relevant--if not essential--to [the judge's] selection of an appropriate sentence;'" (14) the Court thus held that even if the defendant is ultimately acquitted on a charge, that charge alone is probative of the defendant's character. (15)

Although the Court's sentencing jurisprudence remained relatively static over time, the logistical realities of sentencing changed drastically. (16) In the 1980s, every state and the federal government enacted guideline sentencing schemes, which transferred an increasing amount of fact-finding responsibility from the jury to the judge. (17) Under most such schemes, juries continued to find the basic facts necessary to establish guilt, but judges acquired responsibility for determining numerous factual questions that could significantly add to or subtract from an offender's sentence. (18) Additionally, guidelines regimes were highly determinate in nature: each additional fact found at sentencing mechanically corresponded with a requisite increase or decrease in an offender's sentence. (19)

The consequences of this transfer of determinate fact-finding authority ultimately led the Court to extend once unnecessary procedural protections to the sentencing phase. (20) In 2000--just three years after Watts--the Court decided Apprendi v. New Jersey, (21) definitively signaling the beginning of a robust application of the Sixth Amendment jury trial right to the sentencing stage. (22) Specifically, the Court held that the Sixth Amendment required the jury, rather than the judge, to find all facts necessary to justify a defendant's sentence. (23) In holdings subsequent to Apprendi, the result of the Court's new Sixth Amendment jurisprudence has been profound: not only have the guideline sentencing regimes of Washington (24) and California (25) been invalidated, but in United States v. Booker, (26) the Court struck down the federal Guidelines sentencing scheme.

The implications of the Court's modern Sixth Amendment jurisprudence clearly have been widespread and continually evolving. Although the Court has not directly revisited the acquitted conduct question presented in Watts, its recent decisions imply that this once-permissible practice is no longer constitutionally acceptable. In passing, some commentators have even observed the seeming contradiction between the Court's ruling in Booker and its validation of the consideration of acquitted conduct in Watts, (27) but no scholarship has analyzed the question in depth. In an attempt to fill this gap, this Note argues that the judicial consideration of acquitted conduct has been rendered unconstitutional by the Court's modern Sixth Amendment jurisprudence.

Part I of this Note will examine the values underlying the jury trial right. In particular, this Part will focus on two structural aspects of the Sixth Amendment embraced by the Court's recent sentencing decisions: the jury's role as fact-finder and its right to issue an unreviewable verdict. With these historical values in mind, Part II will contrast the pre-Guidelines roles of judge and jury with their respective roles under the Guidelines regime. Specifically, this Part will illustrate the manner in which the Guidelines transferred determinate fact-finding authority from the jury to the judge, resulting in a division of labor at odds with the Sixth Amendment's constitutional design. Furthermore, this Part will discuss the Watts decision in detail, highlighting the inherent contradiction between the sentencing efficiency sought by the Watts Court and the values of the jury trial reserved by the Sixth Amendment.

Part III will then review the Court's response to this modern sentencing regime--a robust jurisprudence that extends Sixth Amendment protections to the sentencing phase. Although the Court's modern Sixth Amendment jurisprudence should have prompted changes in the lower courts with respect to consideration of acquitted conduct, Part IV will examine the persistent refusal among many circuits to invalidate the practice. Finally, Part V will argue that the principles espoused by the Court in Apprendi and its progeny, in addition to the constitutional history relied upon in these cases, renders the consideration of acquitted conduct unconstitutional.

1. THE SIXTH AMENDMENT RIGHT TO A JURY TRIAL

   Article III of the Constitution establishes that "[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury...." (28)

   As its textual placement in the Constitution suggests, the jury trial right occupies a position of significant importance in the judicial branch. (29) But the Framers determined that this reservation of power for the jury was insufficient; thus, the Sixth Amendment supplements Article III by guaranteeing the right to a jury trial in a criminal proceeding. (30) Consequently, a criminal defendant has a constitutional right to demand that all charges against him be proven to a jury beyond a reasonable doubt. (31) Before critiquing the method by which modern sentencing schemes dilute the jury's constitutional role, however, the values underlying the right to a jury trial must be defined. This Part will first briefly examine the history of the jury trial and, with this context in mind, proceed to discuss the manner in which the Framers envisioned that the criminal jury would function.

   1. A Brief History of the Right to a Jury Trial

      The right to a trial by jury has an illustrious history in the common law. William Blackstone himself traced the roots of the jury system to the signing of the Magna Carta (32) and praised the English jury both for the measure of protection it afforded the accused and as an institution of judicial democracy. (33) According to Blackstone, the jury protections ensured that one "cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals." (34) Such high praise was typical among Englishmen of Blackstone's time; in fact, the late seventeenth century has been called "the heroic age of the English jury," (35) an era in which juries famously acquitted defendants who were prosecuted for speaking out against government abuses. (36)

      Following this common law tradition, the colonists took immediate steps to preserve the criminal jury when building their new communities in North America. (37) Colonial juries were structured so that the jury continued to stand between the government and the accused and, in the tradition of their English predecessors, colonial juries employed their acquittal power to provide an explicit check against government overreaching. (38) The most notorious instance occurred in the case of John Peter Zenger in 1734. (39) Attempting to punish Zenger for publishing criticism of his administration, the royal governor of New York unsuccessfully made three attempts to obtain a grand jury indictment for sedition. (40) Each time, colonial juries refused to indict. (41) Finally, the governor circumvented the grand jury, proceeding on the basis of an "information." (42) At trial, however, the jury nonetheless returned a verdict of not guilty. (43) Colonists celebrated these repeated acquittals as an expression of the popular will, and Zenger's story "became the American primer on the role and duties of jurors" in the colonies. (44)

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