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Acquitted conduct enhances sentence

What the court held

Case: U.S. v. Horne, No. 05-4049.

Issue: Does using eBay to lure a victim to an armed robbery satisfy the interstate commerce nexus of the Hobbs Act?

Can a court enhance a sentence based on acquitted conduct?

Holding: Yes. The Internet crosses interstate and international borders, and satisfies the commerce nexus.

Yes. The right to jury is not violated by the enhancement.

Conduct for which a defendant was acquitted may nevertheless be used to enhance his sentence, the Seventh Circuit held on Feb. 5.

The court also held that using eBay to commit a crime satisfies the interstate commerce nexus, making the offense punishable under the Hobbs Act.

Dewan Anthony Horne advertised fictitious vintage cars on eBay. When interested persons would come to Indianapolis to pick up the car, he and an accomplice would rob them, or attempt to in some cases.

Horne was charged with violating, conspiring to violate, and attempting to violate the Hobbs Act, 18 U.S.C. 1951(a), which makes a federal offense of robbery that “in any way or degree obstructs, delays, or affects commerce.” He was also convicted of using a gun in connection with a crime of violence, in violation of 18 U.S.C. 924(c)(1)(A).

He was acquitted of a gun charge related to one of the attempted robberies.

The judge imposed sentences of 112 months for the Hobbs Act violations and 84 months for the gun violation, for a total of 196 months. The Hobbs Act sentence included an enhancement for using a gun during the crime, even though the jury acquitted Horne of the applicable sec. 924(c) charge.

Horne appealed, but the Seventh Circuit affirmed, in a decision by Judge Richard A. Posner.

Interstate Commerce

The court held that the interstate commerce nexus was satisfied, even though the crimes all occurred in Indianapolis in face-to-face encounters.

The court noted, “eBay, the online auction site, is an avenue of interstate commerce, like an interstate highway or long-distance telephone service. The people who buy and sell through eBay are scattered around the world.”

The court added, “The Internet, which is the communication channel that people use in transacting through eBay, crosses state and indeed international boundaries, and the buy and sell offers communicated over it in this case created interstate transactions and were affected by the defendant’s fraud (cites omitted).”

Accordingly, the court affirmed the Hobbs Act convictions.


The court also affirmed Horne’s sentence, including the weapon enhancer, even though he was acquitted of the underlying gun charge.

The court reasoned, “All an acquittal means is that the trier of fact, whether judge or jury, did not think the government had proved its case beyond a reasonable doubt. The facts that a sentencing judge finds in determining what sentence to impose … need be found only by a preponderance of the evidence, the normal civil standard.”


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Case Analysis


The court noted that this has been the law since before the enactment of the Sentencing Guidelines, and has remained so both before and since the U.S. Supreme Court held the Gu
idelines only advisory.

Accordingly, the court affirmed the sentence as well.

However, the court added the following caveat: “This is not a case in which a jury convicts a defendant of one very minor crime and acquits him of the serious crimes with which he was charged, and the judge then bases the sentence almost entirely on those crimes. … A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction.”

Were that to happen, the court stated that it would be a judgment for the sentencing judge to make, and it would be upheld so long as it was reasonable.

The court acknowledged that some district judges are refusing to take account of acquitted conduct, to avoid “unwarranted sentence disparities.”

Rejecting the reasoning, the court wrote, “Those judges are mistaken if they think they’re barred from considering such conduct. If there are unwarranted disparities as a result, it is the government that should be complaining, not a defendant who was properly sentenced, as was the defendant in this case.”

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David Ziemer can be reached by email.

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