                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2006

USA v. Hayward
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2451




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"USA v. Hayward" (2006). 2006 Decisions. Paper 1225.
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NOT PRECEDENTIAL

                     IN THE UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT

                                    Case No: 05-2451

                           UNITED STATES OF AMERICA

                                              v.

                                  SCOTT HAYWARD,

                                             Appellant


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                      District Judge: The Honorable Alan N. Bloch
                               District Court No.: 02-CR-63


                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   March 27, 2006

               Before: RENDELL, SMITH, and BECKER, Circuit Judges

                                  (Filed: April 25, 2006)


                               OPINION OF THE COURT


SMITH, Circuit Judge.

       Scott Hayward was convicted by a jury of one count of traveling with the intent to

engage in a sexual act with a juvenile in violation of 18 U.S.C. § 2423(a). He was

acquitted of a second count which charged him with violating 18 U.S.C. § 2421 by

transporting an individual in interstate commerce with the intent to engage in sexual
activity. At re-sentencing post-Booker,1 the District Court considered the conduct

underlying both counts and sentenced Hayward to 78 months, the top of the applicable

guideline range. Hayward appealed, arguing that the District Court erred by considering

the conduct of which he was acquitted.2 For the reasons set forth below, we will affirm.

       The government contends that the District Court did not err because the Supreme

Court determined in United States v. Watts, 519 U.S. 148 (1997), that a “sentencing court

may consider conduct of which a defendant has been acquitted.” Id. at 154. In the

government’s view, Watts remains good law after Booker. Several of our sister courts of

appeals agree with this view. See United States v. Vaughn, 430 F.3d 518, 526-27 (2nd

Cir. 2005); United States v. Price, 418 F.3d 771, 787-88 (7th Cir. 2005); United States v.

Duncan, 400 F.3d 1297, 1304-05 (11th Cir. 2005). We find no reason to follow a

different path.

       The Supreme Court explained in Watts that it was permissible to consider at

sentencing the conduct of which a defendant was acquitted. It relied upon § 3661 of the

Federal Crimes Code which “codifie[d] the longstanding principle that sentencing courts

have broad discretion to consider various kinds of information.” Watts, 519 U.S. at 151.


  1
   See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) (declaring that United
States Sentencing Guidelines are only advisory).
  2
    The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction under 18 U.S.C. § 3742(a). United States v. Cooper, 437 F.3d 324, 327-28
(3d Cir. 2006). We exercise plenary review over questions of law concerning the
application of the sentencing guidelines. United States v. Newsome, 439 F.3d 181, 183
(3d Cir. 2006).

                                             2
Section 3661 states that “[n]o limitation shall be placed on the information concerning the

background, character, and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of imposing an appropriate

sentence.” 18 U.S.C. § 3661. This provision, the Watts Court pointed out, was consistent

with sentencing guideline § 1B1.4, providing that a sentencing court was not limited in

the information it could consider in imposing a sentence, as well as guideline § 1B1.3

which directs sentencing courts to consider all other related conduct. Watts, 519 U.S. at

152-53 (citing U.S.S.G. § 1B1.3 and § 1B1.4).

       Although the Supreme Court was “convinced that a sentencing court may consider

conduct of which a defendant has been acquitted,” id. at 154, it reiterated that the

consideration of acquitted conduct for sentencing did not offend the Double Jeopardy

Clause as it had explained in Witte v. United States, 515 U.S. 389 (1995). It again

instructed that “sentencing enhancements do not punish a defendant for crimes of which

he was not convicted, but rather increase his sentence because of the manner in which he

committed the crime of conviction.” Watts, 519 U.S. at 154. Thus, a “jury’s verdict of

acquittal does not prevent the sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct has been proved by a preponderance of the

evidence.” Id. at 157.

       In Booker, Justice Stevens’s majority opinion declared in a footnote that “none of

our prior cases,” including Witte and Watts, were “inconsistent with today's decision.”



                                              3
543 U.S. at __, 125 S.Ct. at 754 n.2. In light of Justice Stevens's observations and the fact

that § 3661 was not invalidated by Booker, we too conclude that Watts remains good law.

       Accordingly, we find no error by the District Court in considering the conduct of

which Hayward was acquitted. We will affirm the judgment of the District Court.
