Not Convicted, but Sentenced for a Crime

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Not Convicted, but Sentenced for a Crime

Postby jbird4049 » Mon Oct 20, 2014 2:58 pm

Most Americans probably believe that the government must first convict you of a crime before it can impose a sentence on you for that crime. This is incorrect: When federal prosecutors throw a bunch of charges at someone but the jury convicts on only some of those charges, a federal judge can still sentence the defendant on the charges for which he was acquitted. In fact, the judge can even consider crimes for which the defendant has never been charged.


http://www.washingtonpost.com/news/the-watch/wp/2014/10/20/think-the-government-must-convict-you-of-a-crime-before-it-can-punish-you-for-it-think-again/


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Re: Not Convicted, but Sentenced for a Crime

Postby coyo7e » Tue Oct 21, 2014 12:13 am

Can't afford a great lawyer? You're fucked. Enjoy.
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Re: Not Convicted, but Sentenced for a Crime

Postby de officiis » Tue Oct 21, 2014 3:40 am

Here's a segment from the D.C. Circuit Court of Appeal's opinion (from which the Petition for Cert was filed), so you can understand why the decision came down the way it did. Not saying I agree with it, but it looks like they were doing what the Supreme Court said is the law...

Appellants also argue that their sentences violated their Sixth Amendment right to trial by jury because they were based, in part, on appellants' supposed involvement in the very conspiracy that the jury acquitted them of participating in. Take their acquitted conduct out of the calculation, they contend, and their Guidelines ranges would have been between 27 and 71 months, a mere fraction of the sentences they received.

Although we understand why appellants find sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime. See United States v. Settles, 530 F.3d 920, 923-24, 382 U.S. App. D.C. 7 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (per curiam)); Dorcely, 454 F.3d at 371 ("[A] sentencing court may base a sentence on acquitted conduct without offending the defendant's Sixth Amendment right to trial by jury."). This is true even when consideration of the acquitted conduct multiplies a defendant's sentence severalfold. See Dorcely, 454 F.3d at 370-71. Appellants, in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, see LaShawn A. v. Barry, 87 F.3d 1389, 1395, 318 U.S. App. D.C. 380 (D.C. Cir. 1996) (en banc), no subsequent decision by the Supreme Court or another circuit calls their validity into question. Cf. Fed. R. App. P. 35(b)(1) (suggesting contrary decisions by the Supreme Court or by another court of appeals as grounds for en banc review). Indeed, since the Supreme Court struck down the mandatory federal sentencing guidelines and freed judges "to exercise broad discretion in imposing a sentence within a statutory range," United States v. Booker, 543 U.S. 220, 233, 243-44, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), every numbered circuit has addressed the constitutionality of sentencing based on acquitted conduct, and each one has reached the same conclusion reached by this court. See United States v. White, 551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting cases from every numbered circuit but the Sixth).

We also lack any basis to reconsider the settled rule that enhancing a sentence within the statutory range based on facts found by the judge, as opposed to the jury, does not violate the Sixth Amendment. See Settles, 530 F.3d at 923; Bras, 483 F.3d at 107. Appellants' challenge to this practice relies principally on Justice Scalia's concurrence in Rita v. United States, 551 U.S. 338, 127 S. Ct. 2456, 168 L. Ed. 2d 203 (2007), which suggested that defendants should be permitted to challenge sentences that depend on judge-found facts to survive substantive reasonableness review. See Rita, 551 U.S. at 375 (Scalia, J., concurring) (reading the majority's opinion as not "rul[ing] out . . . Sixth Amendment challenges to sentences that would not have been upheld as reasonable on the facts encompassed by the jury verdict or guilty plea"); see also Gall v. United States, 552 U.S. 38, 60, 128 S. Ct. 586, 169 L. Ed. 2d 445 (2007) (Scalia, J., concurring).

Whatever the merits of Justice Scalia's argument, it is not the law. See Rita, 551 U.S. at 352 (majority opinion) ("This Court's Sixth Amendment cases do not automatically forbid a sentencing court to take account of factual matters not determined by a jury and to increase the sentence in consequence."). No Supreme Court majority has ever recognized the validity of such challenges, and among the courts of appeals the consensus is clearer still: every circuit to have considered such challenges has rejected them as inconsistent, in principle, with the post-Booker rule that "[f]or Sixth Amendment purposes, the relevant upper sentencing limit established by the jury's finding of guilt is . . . the statutory maximum, not the advisory Guidelines maximum corresponding to the base offense level." Settles, 530 F.3d at 923; see United States v. Norman, 465 F. App'x 110, 120-21 (3d Cir. 2012) (collecting cases). And though our circuit has not specifically considered such challenges, our precedent is equally categorical: judicial fact-finding does "not implicate the Sixth Amendment even if it yield[s] a sentence above that based on a plea or verdict alone." Bras, 483 F.3d at 107 (internal quotation marks omitted). Accordingly, we must reject appellants' Sixth Amendment claims. The district court did not violate their right to trial by jury by sentencing them within the statutory range based on acquitted conduct that it found by a preponderance of the evidence.


http://www.cadc.uscourts.gov/internet/opinions.nsf/EF97673D47DDE5AE85257C9B004E5DA0/$file/08-3033-1483944.pdf
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Re: Not Convicted, but Sentenced for a Crime

Postby Dr. Strangelove » Tue Oct 21, 2014 10:20 am

It would be awesome if a well-known blues player stood on the court steps during the appeal and played Blind Willie Johnson's If I Had My Way.





One such song was called “If I Had My Way I’d Tear the Building Down,” which, the story has it, earned Johnson more than one night in jail for incitement to riot. Recorded in 1927, the song, in point of fact, was a spirited retelling of the biblical story of Samson and Delilah, and it would become a standard of the civil rights movement. Another, recorded three years later, was “John the Revelator,” a haunting invocation of the Book of Revelation.


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Re: Not Convicted, but Sentenced for a Crime

Postby nmoore63 » Tue Oct 21, 2014 10:33 am

Pardon, I am obviously ignorant. Since when has a judge been the allowed to be sole fact finder in a criminal case?

The facts are, you're guilty?

Not surprising the a court would find that the court should have more power. A bit of a violation of the balance of powers the founders were going for.

In the end though, what I read is that they are only allowed to extend your sentence WITHIN the limits of what you are found guilty of? Correct?

IE. You were found guilty of X which can range from 1 to 5 years. Based on this other stuff you were NOT found guilty of, you are sentences to 5 instead of 1?

If that's the case, it sounds like something within the judges discretion.



Reading my post... it sounds like I need to do some more reading...
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Re: Not Convicted, but Sentenced for a Crime

Postby Fife » Tue Oct 21, 2014 10:38 am

nmoore63 wrote:Pardon, I am obviously ignorant. Since when has a judge been the allowed to be sole fact finder in a criminal case?

The facts are, you're guilty?

Not surprising the a court would find that the court should have more power. A bit of a violation of the balance of powers the founders were going for.

In the end though, what I read is that they are only allowed to extend your sentence WITHIN the limits of what you are found guilty of? Correct?

IE. You were found guilty of X which can range from 1 to 5 years. Based on this other stuff you were NOT found guilty of, you are sentences to 5 instead of 1?

If that's the case, it sounds like something within the judges discretion.



Reading my post... it sounds like I need to do some more reading...


Take a closer look at the case that deO cited. This is the flip-side of mandatory sentencing, which has its own (obvious from the OP IMNSHO) blemishes.

Some SCOTUS some sunny day in some future life might find this stuff agin the 6th A.
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Re: Not Convicted, but Sentenced for a Crime

Postby jbird4049 » Tue Oct 21, 2014 2:27 pm

Fife wrote:
nmoore63 wrote:Pardon, I am obviously ignorant. Since when has a judge been the allowed to be sole fact finder in a criminal case?

The facts are, you're guilty?

Not surprising the a court would find that the court should have more power. A bit of a violation of the balance of powers the founders were going for.

In the end though, what I read is that they are only allowed to extend your sentence WITHIN the limits of what you are found guilty of? Correct?

IE. You were found guilty of X which can range from 1 to 5 years. Based on this other stuff you were NOT found guilty of, you are sentences to 5 instead of 1?

If that's the case, it sounds like something within the judges discretion.



Reading my post... it sounds like I need to do some more reading...


Take a closer look at the case that deO cited. This is the flip-side of mandatory sentencing, which has its own (obvious from the OP IMNSHO) blemishes.

Some SCOTUS some sunny day in some future life might find this stuff agin the 6th A.


If the sentence for just that conviction was only being enhanced then maybe it could be thought of as okay. It is not that reasonable. The judge sentenced them for the crimes which they had been acquitted of, not just for the actual conviction. Said differently, they were sentenced as if they had been convicted of all charges not just the one.

[A] District of Columbia jury found Antwuan Ball, Desmond Thurston and Joseph Jones guilty in 2007 of selling between two and 11 grams of cocaine, relatively small amounts. They were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.

Yet, when U.S. District Judge Richard Roberts sentenced the three, he said he “saw clear evidence of a drug conspiracy,” and sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively — four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to filings with the Supreme Court.


From the same linked article, Radley Balko wrote that Federal judges have sentenced people for uncharged crimes such as murder.

There have been other cases like this, including at least two in which federal judges sentenced defendants for murders for which they were never even charged, never mind convicted. So not only can a judge sentence a defendant for crimes for which a jury acquitted, he can sentence a defendant for crimes for which prosecutors didn’t have enough evidence to charge.
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Re: Not Convicted, but Sentenced for a Crime

Postby Fife » Tue Oct 21, 2014 2:29 pm

Kind of hits you as a violation of the right to trial by jury, eh?
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Re: Not Convicted, but Sentenced for a Crime

Postby nmoore63 » Tue Oct 21, 2014 2:36 pm

I am still quibbling over the words.

four times higher than the highest sentences given for others who sold similar


That doesn't mean they couldn't have been.


If what is being proposed is true, then you are talking a tyranny that should involve potentially life sentences for the Judges.
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Re: Not Convicted, but Sentenced for a Crime

Postby de officiis » Tue Oct 21, 2014 6:29 pm

Here's a portion of the Supreme Court's 7 to 2 opinion in Watts, which the D.C. Circuit cited (the underlining and parenthetical is mine). I think I understand what they're doing, but it's certainly not common knowledge to most folks.

The Court of Appeals' position ... not only conflicts with the implications of the Guidelines, but it also seems to be based on erroneous views of our double jeopardy jurisprudence. The Court of Appeals asserted that, when a sentencing court considers facts underlying a charge on which the jury returned a verdict of not guilty, the defendant "'suffers punishment for a criminal charge for which he or she was acquitted.'" Watts, 67 F.3d at 797 (quoting Brady, 928 F.2d at 851). As we explained in Witte, however, sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. 515 U.S., at 395. In Witte, we held that a sentencing court could, consistent with the Double Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence on marijuana charges that was within the statutory range, without precluding the defendant's subsequent prosecution for the cocaine offense. We concluded that "consideration of information about the defendant's character and conduct at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted." Id., at 401. Rather, the defendant is "punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . . ." Id., at 402; see also Nichols, 511 U.S. at 747.

The Court of Appeals likewise misunderstood the preclusive effect of an acquittal, when it asserted that a jury "rejects" some facts when it returns a general verdict of not guilty. Putra, 78 F.3d at 1389 (quoting Brady, supra, 928 F.2d at 851). The Court of Appeals failed to appreciate the significance of the different standards of proof that govern at trial and sentencing. We have explained that "acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt." United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984). As then-Chief Judge Wallace pointed out in his dissent in Putra, it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.

"An acquittal is not a finding of any fact. An acquittal can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt. Without specific jury findings, no one can logically or realistically draw any factual finding inferences . . . ." 78 F.3d at 1394.

Thus, contrary to the Court of Appeals' assertion in Brady, supra, at 851, the jury cannot be said to have "necessarily rejected" any facts when it returns a general verdict of not guilty.

For these reasons, "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof." Dowling v. United States, 493 U.S. 342, 349, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990). The Guidelines state that it is "appropriate" that facts relevant to sentencing be proved by a preponderance of the evidence, [this is a lower standard of proof than 'beyond a reasonable doubt'] USSG § 6A1.3 comment., and we have held that application of the preponderance standard at sentencing generally satisfies due process. McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986); Nichols, supra, 511 U.S. at 747-748. . . . We therefore hold that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.

Accordingly, the Court of Appeals erred in both cases before us today. In Putra, the jury simply found that the prosecution had not proved the defendant's complicity in the May 9 sale beyond a reasonable doubt. The acquittal sheds no light on whether a preponderance of the evidence established Putra's participation in that transaction. Likewise, in Watts, the jury acquitted the defendant of using or carrying a firearm during or in relation to the drug offense. That verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.


http://www.law.cornell.edu/supct/html/95-1906.ZPC.html

It's unfortunate that the reporter on the story in the OP didn't really make an effort to explain some of these underlying legal principles, but I guess nowadays the goal is to always go for the "outrage" factor...
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Re: Not Convicted, but Sentenced for a Crime

Postby jbird4049 » Thu Oct 23, 2014 4:55 pm

de officiis wrote:Here's a portion of the Supreme Court's 7 to 2 opinion in Watts, which the D.C. Circuit cited (the underlining and parenthetical is mine). I think I understand what they're doing, but it's certainly not common knowledge to most folks.

The Court of Appeals' position ... not only conflicts with the implications of the Guidelines, but it also seems to be based on erroneous views of our double jeopardy jurisprudence. The Court of Appeals asserted that, when a sentencing court considers facts underlying a charge on which the jury returned a verdict of not guilty, the defendant "'suffers punishment for a criminal charge for which he or she was acquitted.'" Watts, 67 F.3d at 797 (quoting Brady, 928 F.2d at 851). As we explained in Witte, however, sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the manner in which he committed the crime of conviction. 515 U.S., at 395. In Witte, we held that a sentencing court could, consistent with the Double Jeopardy Clause, consider uncharged cocaine importation in imposing a sentence on marijuana charges that was within the statutory range, without precluding the defendant's subsequent prosecution for the cocaine offense. We concluded that "consideration of information about the defendant's character and conduct at sentencing does not result in 'punishment' for any offense other than the one of which the defendant was convicted." Id., at 401. Rather, the defendant is "punished only for the fact that the present offense was carried out in a manner that warrants increased punishment . . . ." Id., at 402; see also Nichols, 511 U.S. at 747.

The Court of Appeals likewise misunderstood the preclusive effect of an acquittal, when it asserted that a jury "rejects" some facts when it returns a general verdict of not guilty. Putra, 78 F.3d at 1389 (quoting Brady, supra, 928 F.2d at 851). The Court of Appeals failed to appreciate the significance of the different standards of proof that govern at trial and sentencing. We have explained that "acquittal on criminal charges does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt." United States v. One Assortment of 89 Firearms, 465 U.S. 354, 361 (1984). As then-Chief Judge Wallace pointed out in his dissent in Putra, it is impossible to know exactly why a jury found a defendant not guilty on a certain charge.

"An acquittal is not a finding of any fact. An acquittal can only be an acknowledgment that the government failed to prove an essential element of the offense beyond a reasonable doubt. Without specific jury findings, no one can logically or realistically draw any factual finding inferences . . . ." 78 F.3d at 1394.

Thus, contrary to the Court of Appeals' assertion in Brady, supra, at 851, the jury cannot be said to have "necessarily rejected" any facts when it returns a general verdict of not guilty.

For these reasons, "an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof." Dowling v. United States, 493 U.S. 342, 349, 107 L. Ed. 2d 708, 110 S. Ct. 668 (1990). The Guidelines state that it is "appropriate" that facts relevant to sentencing be proved by a preponderance of the evidence, [this is a lower standard of proof than 'beyond a reasonable doubt'] USSG § 6A1.3 comment., and we have held that application of the preponderance standard at sentencing generally satisfies due process. McMillan v. Pennsylvania, 477 U.S. 79, 91-92, 91 L. Ed. 2d 67, 106 S. Ct. 2411 (1986); Nichols, supra, 511 U.S. at 747-748. . . . We therefore hold that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.

Accordingly, the Court of Appeals erred in both cases before us today. In Putra, the jury simply found that the prosecution had not proved the defendant's complicity in the May 9 sale beyond a reasonable doubt. The acquittal sheds no light on whether a preponderance of the evidence established Putra's participation in that transaction. Likewise, in Watts, the jury acquitted the defendant of using or carrying a firearm during or in relation to the drug offense. That verdict does not preclude a finding by a preponderance of the evidence that the defendant did, in fact, use or carry such a weapon, much less that he simply possessed the weapon in connection with a drug offense.


http://www.law.cornell.edu/supct/html/95-1906.ZPC.html

It's unfortunate that the reporter on the story in the OP didn't really make an effort to explain some of these underlying legal principles, but I guess nowadays the goal is to always go for the "outrage" factor...


Radley Balko's column is mostly a mix of a few judicial, police, and legislative abuse and corruption stories near daily. He does do some long form reporting, including some books, but his focus seems to be getting peoples' attention to the topic rather than giving detailed explanations. For example, he does coverage on individual asset forfeiture abuses, but doesn't always explain why the state, and federal, legislatures passed the forfeiture laws, and why the courts have upheld them.

Perhaps he feels there so much muck to dig up, and so little time to do so?
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Who controls the past controls the future: who controls the present controls the past.
― George Orwell, Nineteen Eighty-Four

Those who cannot remember the past are condemned to repeat it.
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