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's offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States Code maximums.

Judge Merrit's dissenting opinion begins:

The majority of my colleagues now send the defendant, Roger White, to prison for 14 additional years for three crimes the jury in its verdict said he did not commit. The enhancement of 14 years more than doubled the sentence to 22 years. There are at least two related but independently sufficient reasons to reverse White's sentence. First, the reasonableness — and thus legality — of White's sentence depends entirely on the presence of facts that were found by a judge, not a jury, in contravention of the Sixth Amendment. Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense.

My colleagues do not discuss any of these issues in their opinion, which instead relies upon but fails to understand and completely misapplies the Supreme Court's opinion in United States v. Watts, 519 U.S. 148 (1997). The majority also misunderstands the Supreme Court's Apprendi-Blakely-Booker line of cases, erroneously asserting that judicial factfinding poses no Sixth Amendment problems whatsoever so long as the sentence is within the statutory range authorized by the jury verdict.

After briefly explaining the sentencing facts of this case (facts glossed over in the majority opinion), I will set out the reasoning the majority should have followed. Because the sentence cannot be upheld as reasonable without accepting as true certain judge-found facts, the sentence represents an as-applied violation of White's Sixth Amendment rights and should be reversed. White's sentence, of course, is just one example of the widespread problem of using judge-found facts to calculate the applicable sentencing range under the Guidelines. In my view, the solution to this problem lies in the distinction between offense conduct, which must be found by the jury or admitted by the defendant, and offender characteristics, which may be found by the sentencing judge. Next, I turn to the broader question of acquitted conduct. Because there is no binding precedent on the issue of acquitted conduct and the right to trial by jury, we should address this open question by reference to the history and substantive protections of the jury-trial right. In so doing, I conclude that punishment for acquitted conduct poses unique constitutional problems and must be avoided.

I am anything but a sentencing law maven — and I would normally expect to agree with the judges in the majority than those in the dissent — but I am inclined to think the dissent is correct here. I also think it is also interesting that, while the Supreme Court has not spilt along traditional ideological lines in its big sentencing cases (e.g. Apprendi, Blakely, Booker), the split here is along traditional right-left lines.

Paul Doug Berman has more here and here. [Many apologies to Doug Berman, I have a bad habit of calling him "Paul.")