09-3967 U.S. v. Waltower

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Sentencing
FIPOF; use of acquitted conduct

The district court’s consideration of acquitted conduct at sentencing was neither unconstitutional in general nor was it inappropriate in this case.

“Waltower’s primary argument is that it is unconstitutional to consider acquitted conduct at sentencing. The Supreme Court has rejected that argument, stressing that a person whose acquitted conduct is considered at sentencing is not punished for a crime of which he has not been convicted. Rather, he is punished for the crime he did commit: and because the sentencing guidelines direct judges to look at the characteristics of the offense, relevant conduct proved by a preponderance standard can include acquitted conduct. United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam) (sentence informed by acquitted conduct violates neither the Fifth Amendment’s prohibition on double jeopardy nor its due-process guarantee); see also Alabama v. Shelton, 535 U.S. 654, 665 (2002) (“Thus, in accord with due process, [a defendant] could have been sentenced more severely based simply on evidence of the underlying conduct . . .even if he had been acquitted of the misdemeanor with the aid of appointed counsel.”) (citations and quotation marks omitted). …

“Much of Waltower’s brief argues, in effect, that Watts was wrongly decided when it was decided; he argues that the distinction between being punished for acquitted conduct and being sentenced based on the characteristics of an offense for which a defendant has been convicted is ‘illusory,’ Appellant’s Brief at 17, and that the Court was mistaken in its view that Congress had authorized the use of acquitted conduct in calculating a guidelines range, id. at 33. His view of the case, however, does not render its holding any less binding on lower courts. Nor has Watts been overturned by the Supreme Court’s line of cases beginning with Apprendi v. New Jersey, 530 U.S. 466, 478 (2000), articulating important principles relating to the ‘companion right[s]’ of due process and the Sixth Amendment right to a jury trial.” …

“Nor is there an alternative basis for finding that the use of acquitted conduct is ‘unreasonable’ under the Sentencing Reform Act. The Supreme Court held in Booker that the reasonableness standard was implicit in the Sentencing Reform Act. Booker, 543 U.S. at 260. There is, however, an explicit statutory provision, 18 U.S.C. § 3661, that permits the use of acquitted conduct at sentencing. We will not presume that the implicit standard in the Sentencing Reform Act repeals the statutory provision authorizing the use of acquitted conduct. See Tennessee Valley Authority v. Hill, 437 U.S. 153, 189 (1978) (repeals by implication are disfavored).”

Affirmed.

09-3967, U.S. v. Waltower

Northern District of Illinois, Eastern Division, Coar, J., Flaum, J.

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