Sentencing law - Sixth Circuit affirms sentence enhancement based on acquitted conduct.

• Author: Woodworth, Jaclyn N.
• Position: CASE COMMENTS

Sixth Circuit Affirms Sentence Enhancement Based on Acquitted Conduct--United States v. White, 551 F.3d 381 (6th Cir. 2008)

The Sixth Amendment to the United States Constitution provides a criminal defendant with the right to a trial by an impartial jury. (1) If a jury convicts a criminal defendant, the United States Sentencing Guidelines (Sentencing Guidelines) provide guidance to federal judges for determining sentence length. (2) In United States v. White, (3) the United States Court of Appeals for the Sixth Circuit considered whether a district court violates the Sixth Amendment when it uses conduct of which the jury acquitted the defendant to enhance the defendant's sentence. (4) The court, in a 9-6 opinion, held that the district court did not violate the defendant's right to a jury trial by basing sentencing enhancements on acquitted conduct. (5)

On April 17, 2002, Roger Clayton White, armed with a 9mm rifle, waited in his car while his brother and a friend robbed a bank of more than $100,000 at gunpoint after one of them threateningly discharged a firearm inside the bank. (6) White served as the getaway driver and led police on a high-speed chase, during which someone fired shots from the car at pursuing officers. (7) The grand jury charged White with six counts relating to the incident, and White pled not guilty and proceeded to trial. (8) On January 30, 2003, the jury found White guilty of two of the six counts: armed bank robbery, which carried a maximum sentence of twenty-five years, and possession of a weapon with an obliterated serial number, which carried a maximum sentence of five years. (9) The jury acquitted White on all other counts, including those associated with the use of weapons in connection with the robbery. (10)

Applying the Sentencing Guideline's relevant-conduct factors, the district court enhanced White's sentence ten levels based on the acquitted conduct, increasing his sentence by approximately fourteen years. (11) White appealed, claiming the district court improperly considered the acquitted conduct. (12) On May 31, 2005, the Sixth Circuit affirmed his conviction but remanded for resentencing. (13) On September 22, 2005, the court re-sentenced White to 264 months incarceration, and White appealed again. (14) The Sixth Circuit panel reviewing his appeal affirmed the sentence, but urged en banc consideration regarding the acquitted conduct issue, which the full court granted. (15) On rehearing, the Court held the district court did not violate the defendant's right to jury trial by using acquitted conduct to enhance his sentence because the resulting sentence did not exceed the jury-authorized maximum sentence. (16)

The Supreme Court's sentencing decisions confirm the Sixth Amendment right to jury trial, and hold that the jury must consider facts that would increase a sentence beyond the statutory maximum. (17) The Court clarified that the "statutory maximum" is the maximum sentence that a judge may impose based "solely on the facts reflected in the jury verdict or admitted by the defendant." (18) In United States v. Booker, (19) the Supreme Court announced that the mandatory guideline system sentencing judges used violated the Sixth Amendment, and made the Sentencing Guidelines solely advisory. (20) Post-Booker, circuit courts have unanimously held that the relevant statutory ceiling that judges may impose for the crime the jury convicts the defendant of is the maximum penalty authorized by the United States Code. (21)

Before Booker, the Supreme Court confronted the issue of whether judges may use acquitted conduct as the basis for sentence enhancements in United States v. Watts. (22) Watts dealt with a Fifth Amendment double jeopardy challenge, and not a Sixth Amendment right to jury challenge. (23) Nonetheless, the Watts Court concluded that an acquittal does not prevent a judge from considering the underlying conduct of that acquittal when sentencing so long as the government proves that conduct by a preponderance of the evidence. (24) The Court reasoned that different standards of proof govern at trial and sentencing, and an acquittal by the jury proves only that the defendant was not guilty beyond a reasonable doubt. (25)

Recently, the circuit courts have addressed the use of acquitted conduct to enhance a defendant's sentence. (26) Appellants have continued to argue that Booker implicitly overrules Watts and judge-made findings used to enhance a sentence violate a defendant's right to jury trial. (27) However, all circuits that considered the issue agree that Watts remains good law, including the Sixth Circuit, which recently sanctioned a district court's use of acquitted conduct by relying on Watts. (28)

In United States v. White, the Sixth Circuit joined its sister circuits in affirming a district court's a sentence enhancement based on acquitted conduct. (29) In response to the dissent's argument that Watts, which relied on the Sixth Amendment, was irrelevant to White, who argued based on the Fifth Amendment, the majority stressed the advisory nature of the guidelines and noted that the advisory guidelines do not determine a statutory maximum penalty. (30) Instead, the maximum penalty authorized by the United States Code dictates the relevant statutory ceiling. (31)

The Sixth Circuit noted that the jury's acquittal of White for certain crimes was not a statement that White did not commit those crimes, but rather an indication that the jury was not convinced beyond a reasonable doubt. (32) The court clarified that White was not being "sentenced for acquitted conduct" when the judge took "that conduct into account in determining a sentence for the crime of which White was convicted, as long as the...