Interesting defense, and I agree that the arguments that rely on calling it 'aquitted conduct' are somewhat misguided. And it seems fairly reasonable in the situations you describe but there must be some limit or this argument effectively eliminates the right to a jury trial -- at least in a system in which defendants frequently don't serve even a tiny fraction of the time the criminal law theoretically allows to be imposed.

Surely at least you need a principle that demands the upward variation be related to the manner or aspect the defendant committed the convicted conduct not just a totally seperate judgement that they did a different unconvicted bad thing,

If not then a DA who realizes that the jury is going to be reluctant to convict on the serious crime could bring a count for 100s of minor crimes (eg one count per controlled substance violation for someone who handed out MDMA as part of a protest). The guidelines say you look at most serious offense but if there is no limiting principle the judge could in theory use the fact that he thinks the defendent did some other serious crime with only a loose relationship to the minor ones (alleged to have been organized to occur as part of same protest) to justify imposing a sentence 30x the guideline range by ruling that those many minor offenses will be served consecutively.

Even if that's not the normal case it seems to me that there must be some remedy there or you've effectively eliminated the defendant's right to be found guilty by a jury.

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Thanks for the comment. I think the principle you argue for in your second paragraph is indeed what happened here - the judge clearly thought McClinton was the shooter, which was related to his overall dangerousness and the appropriate punishment for the armed robbery for which he was convicted.

More generally, as I argue in the piece, the arguments about what prosecutors could do to manipulate things ignore the role of the judge. Even if you assume a bad faith prosecutor, we assume a judge has the ability to see what is going on and sentence accordingly, considering all of the facts. There are some cases where acquitted conduct is relevant to the sentencing on other charges, and other cases where it is not, and we rely on judges to know the difference. (Of course a defendant who is stuck with both a bad faith prosecutor and a bad faith judge has a problem - but that's a problem of individual people, not the structure of the sentencing system.)

Part of the problems you cite are inevitable as long as we have so many crimes with very high maximum penalties - even if there is only one count of conviction, a judge often can impose a very high sentence regardless of the guidelines. But even with that, the protections provided by the right to jury trial are not completely eliminated. Because the jury found McClinton not guilty of the robbery and killing of McClinton, the maximum the judge could have given him was the statutory max of 27 years - regardless of what the guidelines say (and of course the judge actually gave him 8 years less than that). If the jury had convicted McClinton of all charges, he could have gotten life in prison or even the death penalty.

Thanks again for the note.

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Thanks for your reply, and I agree with most of your responses. Indeed, as a practical matter I agree it would probably be fine for the most part -- maybe completely. But I think the same could probably be said about eliminating the right to a jury trial entirely.

So I'm not particularly worried about the consequences, but I do still feel like that as a formal matter there should be something like a requirement that the conduct the judge sentences on relates to the convicted conduct -- as it was in the McClinton case.

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Great post.

I do agree (generally speaking) just some few here:

First, the fact that a judge is obviously more experienced and trained than a jury or jurors, is hardly an argument in the US ( unfortunately so). This is because, the intent of the founders in conducting trials by jury, was to divert the discretion, from the alleged egocentric position of one professional judge, to that one of let's say, laymen or common people. So, it wouldn't help so much to argue such thing.

Second, the purpose of the new guidelines for sentencing, was, I quote ( Justice Thomas dissenting, in US v. Booker):

" provide certainty and fairness in meeting the purposes of sentencing, avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct while maintaining sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices"

End of quotation:

So, uniformity, and individuality at the same time. In this regard, taking into account facts based on the so called "acquitted conduct" or relevant conduct, may support or fulfil one may argue, that element of the purpose has to do with individuality as cited above.

Finally, not to forget. We tend to distinguish between questions of fact, and questions of law. The former belongs to the jury. The latter to the judge. But, the consolidated configuration, is the legal one. Legal means: facts and law combined to one consolidated configuration. In this regard such distinction between law and facts is artificial. Facts must be oriented towards law. Typically, by the instruction of one judge. One can't suggest here, total distinction. It is far greater more complicated than that.


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If Booker holds that the relevant conduct conduct has to be found by the jury, and here it wasn’t, why isn’t that the end of the analysis?

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Booker held that would be required IF the Guidelines remained mandatory. However the remedy in Booker was to make the Guidelines merely advisory, not mandatory. Under that system the judge is free to find sentencing facts by a preponderance of the evidence because those findings do not increase the maximum allowable sentence, just an advisory one.

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Exactly. The defense bar wants to have its cake and eat it too. Assuming that Booker was correctly decided (I have lots of doubts), there were two remedies: (1) require the govt to prove sentencing facts to a jury BRD; or (2) make the guidelines advisory only. The defense bar got (2). Greedy as ever, it now wants (1) as well. And I'd be perfectly happy to give them (1), if but only if we go back to mandatory guidelines, which, as Justice Stevens established in his dynamite dissent from the remedial portion of Booker, was clearly Congress's desire, because after years of brain-dead leniency, it did not trust judges with nearly the amount of discretion they'd been given under prior law.

Bill Otis

AUSA EDVA 1981-1999

Stanford Law '74

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