Today's a huge Booker/Blakely day.
Here's another opinion -- this one from the Ninth Circuit -- about what facts can permissibly be used in sentencing. The opinion by Judge Fernandez holds, consistent with the view of all of the other circuits that have considered the issue, that a judge may increase a sentence even based upon conduct for which the defendant has been acquitted at trial.
What's most interesting about the case is Judge Betty Fletcher's dissent. It takes a lot to get Judge Fletcher to dissent, and given the uniformity of the federal circuits on this issue, it may facially be surprising that she elects to dissent here. Nonetheless, the use of acquitted conduct in sentencing is sufficiently counterintutive -- at least to Judge Fletcher -- to compel a dissent.
Judge Fletcher's dissent has some pretty good lines, and uses Blackstone and others to highlight the significance of a jury's verdict and the dangers that arise from the rejection of that verdict in sentencing. She says, for example: "By considering acquitted conduct, a judge thwarts the express will of the jury . . . and imposes a punishment based on conduct for which the government tried, but failed, to get a conviction. Such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant’s equals and neighbors. . . . The fact that a jury has not authorized a particular punishment is never more clear than when the jury is asked for, yet specifically withholds, that authorization." Pretty powerful stuff.
In the end, I think that Judge Fernandez probably correctly predicts what the Supreme Court would hold; namely, that Watts survives Booker. But Judge Fletcher makes some darn good policy arguments to the contrary, and were Watts ever to be revisited, her dissent would be a good starting point. Especially in a case like this one, when the sentence that the defendants receive is based almost entirely on conduct for which they were acquitted.
Judge Fletcher says that "[w]hen a jury refuses to convict defendants of several counts, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants’ sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense." She's got a point there. Not one, I think, that's recognized by precedent. But a point nonetheless.