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Acquitted Case Analysis

The court’s holding that the Hobbs Act conviction was supported by an interstate commerce nexus is not surprising, given the minimal nexus required under modern Commerce Clause jurisprudence.

It is noteworthy, nonetheless, inasmuch as it is a novel use of the Hobbs Act. No other court of appeals has yet considered application of the Hobbs Act to a robbery, merely because it was facilitated by the Internet.

The cases that the court cites for support of its holding all involve either possession of child pornography obtained over the Internet, or use of the Internet to solicit children for sexual intercourse. Other cases upholding federal convictions for wire and mail fraud involve directly using a computer to defraud the victim, as opposed to merely luring them into face-to-face contact. U.S. v. Wasz, 450 F.3d 720 (7th Cir. 2006).

So, although the court’s decision is novel, it does not seem objectionable under modern Commerce Clause case law.

The court’s holding on the use of acquitted conduct to enhance a sentence has even more support. Every circuit that has considered the issue has agreed that an acquittal is no bar to a sentence enhancement, and that U.S. v. Booker, 543 U.S. 220 (2005), does not change that.

The Seventh Circuit is one of those circuits that has already so held. U.S. v. Price, 418 F.3d 771 (7th Cir. 2005). What makes the court’s discussion in the case at bar noteworthy is the caveat that, if the sentence was based "almost entirely" on acquitted conduct, a judge could reasonably conclude that the sentence was excessive. Price contained no such language.

The question is how broadly the court will interpret that grant of discretion in future cases.

In the case at bar, the gun enhancement raised the sentencing range from 51 to 63 months, to 97 to 121 months. The Seventh Circuit postulated that, without the enhancement, Horne would have received 57 months (the midpoint of the lower range). Because the ultimate sentence was 112 months, the court thus attributed 55 months to the enhancement.

The court calls this "considerable, but less than half the sentence." No previous case defines "almost entirely," and it is not clear how much higher the percentage would have to be to qualify.

Nor does the decision in this case necessarily bar a district court from imposing a below-guideline sentence because an enhancement for acquitted conduct "only" doubled the sentence.

The decision only states that lower courts are mistaken if they think they cannot consider acquitted conduct.

Coincidentally, for defense attorneys wishing to preserve objections to sentence enhancement based on acquitted conduct, the Third Circuit issued an en banc opinion the same day that the case at bar was decided, which contains two dissents and a concurrence relevant to the issue. U.S. v. Grier, — F.3d —, 2007 WL 315102 (3rd Cir., Feb. 5, 2007)(en banc).

The issue in Grier was different: whether facts used to enhance a sentence must be found beyond a reasonable doubt. However, Judges Sloviter and McKee wrote, and joined each other’s, dissents, with Judge Mckee’s dissent making a lengthy argument against use of acquitted conduct, regardless of how much the conduct increases the sentence. Judge Rendell also wrote a concurrence expressing sympathy with the view of the dissenters.

Finally, it is noteworthy that the court found the jury may have considered an improper factor in acquitting Horne of the gun charge.

The court wrote, "The [district] judge thought the acquittal was due to the fact that the jury had learned from the cross-examination of one of the defendant’s accomplices that to convict the defendant of a second gun charge would subject him to a 25-year mandatory minimum sentence."


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In other words, the district judge considered the evidence clearly sufficient to convict beyond a reasonable doubt. The Seventh Circuit agreed, stating, "any inference that the jury found the defendant to be actually innocent of the gun charge would be particularly far-fetched because there is no doubt that his accomplice brandished a gun during the attempted robbery in question."

Suppose, however, that the district court had stated on the record that, even though he found at sentencing, by a preponderance of the evidence, that the defendant used a gun to commit the crime, he acknowledged that holes in the government’s case warranted the jury in acquitting the defendant.

As a matter of constitutional law, the difference should not matter. Holding sentences constitutional or unconstitutional based on a court’s assessment of why the jury acquitted is not a workable system.

However, when reviewing a district court’s sentence for reasonableness, it can be inferred from the court’s discussion of the weight of the evidence that the distinction may likely warrant greater deference if the district court were to impose a below-guideline sentence, based on the relative weakness of the evidence.

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David Ziemer can be reached by email.

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