On Christmas Eve, the U.S. Court of Appeals for the Sixth Circuit released its en banc opinion in United States v. White, a potentially important sentencing opinion. Splitting along traditional lines, 9-6, the Court held that it is constitutional for a judge to impose sentencing enhancements based upon the defendant’s conduct underlying additional counts for which he was acquitted, so long as the resulting sentence does not exceed the jury-authorized maximum sentence for the crimes for which the defendant was convicted.
Judge Cook’s opinion for the majority begins:
This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White