                    RECOMMENDED FOR FULL-TEXT PUBLICATION
                         Pursuant to Sixth Circuit Rule 206
                               File Name: 08a0457p.06

             UNITED STATES COURT OF APPEALS
                           FOR THE SIXTH CIRCUIT
                             _________________


                                              X
                         Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                               -
                                               -
                                               -
                                                    No. 05-6596
          v.
                                               ,
                                                >
                                               -
                     Defendant-Appellant. -
 ROGER CLAYTON WHITE,
                                               -
                                              N
                  Appeal from the United States District Court
                 for the Eastern District of Kentucky at Covington.
                 No. 02-00027—David L. Bunning, District Judge.

                              Argued: June 4, 2008
                     Decided and Filed: December 24, 2008
Before: BOGGS, Chief Judge; MERRITT, MARTIN, BATCHELDER, DAUGHTREY,
    MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, COOK,
                   McKEAGUE, and GRIFFIN, Circuit Judges.

                               _________________

                                   COUNSEL
ARGUED: Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio, for Appellant. Nina
Goodman, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. Douglas A. Berman, THE OHIO STATE UNIVERSITY, MORITZ COLLEGE
OF LAW, Columbus, Ohio, for Amicus Curiae. ON BRIEF: Kevin M. Schad, SCHAD &
SCHAD, Lebanon, Ohio, for Appellant.         Charles P. Wisdom, Jr., Andrew Sparks,
ASSISTANT UNITED STATES ATTORNEYS, Lexington, Kentucky, Nina Goodman,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. Douglas
A. Berman, THE OHIO STATE UNIVERSITY, MORITZ COLLEGE OF LAW, Columbus,
Ohio, Mark D. Harris, Jeffery A. Gross, Anna G. Kaminska, PROSKAUER ROSE LLP,
New York, New York, for Amicus Curiae.


                                         1
No. 05-6596         United States v. White                                            Page 2


        COOK, J., delivered the opinion of the court, in which BOGGS, C. J.,
BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN,
JJ., joined. MERRITT, J. (pp. 10-25), delivered a separate dissenting opinion, in which
MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

                                   _________________

                                         OPINION
                                   _________________

        COOK, Circuit Judge. 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.

                                              I

        White waited in a car armed with a 9mm rifle while his brother, Jeffrey, and Jeffrey’s
girlfriend, Laurie Fischer, robbed a bank of more than $100,000, holding two bank tellers
at gunpoint and firing a shot near one teller’s head. White drove the getaway car and led
police on a lengthy high-speed chase that included shots fired from the car at pursuing
officers. The chase ended only when White crashed into a roadblock. United States v.
White, 134 F. App’x 880, 882 (6th Cir. 2005). A jury found White guilty of just two of six
charges: armed robbery, which carried a maximum sentence of twenty-five years, 18 U.S.C.
§ 2113(d), and possessing a firearm with the serial number removed, with a five-year
maximum, id. § 922(k).

        Applying the Guidelines’ relevant-conduct principles in sentencing White, see
U.S.S.G. § 1B1.3 (2002 ed.), the court determined that uncontested evidence of shots being
fired in the bank and at pursuing officers warranted certain offense-level enhancements:
seven levels for discharging a firearm during the robbery, id. § 2B3.1(b)(2), and three levels
for assaulting a law enforcement officer during flight, id. § 3A1.2(b)(1). The court justified
using acquitted conduct to enhance White’s sentence by saying, “[W]hile [White] was
No. 05-6596            United States v. White                                                      Page 3


acquitted of the conduct relating to the discharge of the firearm in the vault and then during
the chase . . . he aided and abetted that conduct, and it was reasonably foreseeable to him that
. . . in furtherance of the jointly undertaken criminal activity that guns would be not only
brandished but discharged.”

         When addressing the 18 U.S.C. § 3553(a) factors, the court also noted how the use
of firearms in the bank and during flight “placed in jeopardy the lives of several innocent
persons.” Far from “a garden variety bank robbery,” the court viewed White’s offense as
“probably one of the most egregious bank robberies” it had ever seen, concluding that “the
lives of the folks that were inside that bank have been forever changed by [White’s] and
others’ conduct . . . [and] anything less than [a 264-month sentence] would not promote
respect for the law, [and would] minimize the trauma and pain and suffering by the victims.”

         White appealed, contending that the district court improperly considered acquitted
conduct. The panel reviewing his appeal, with some expressed misgivings, adhered to earlier
precedent on the issue, see United States v. Mendez, 498 F.3d 423 (6th Cir. 2007) (per
curiam), while urging en banc consideration. Recognizing that the acquitted-conduct issue
presents a “question of exceptional importance,” Fed. R. App. P. 35(a)(2), the full court
                                                1
agreed to reconsider the Mendez holding. United States v. White, 503 F.3d 487 (6th Cir.
2007), reh’g en banc granted, op. withdrawn, 2007 WL 2890974 (6th Cir. Nov. 30,
2007).

                                                    II

         First, Mendez. A grand jury charged Victor Mendez with conspiracy to distribute
500 grams or more of a substance containing methamphetamine. 498 F.3d at 425. The
jury foreman checked “yes” on the verdict form to indicate that the government proved
beyond a reasonable doubt at least 50 grams, but checked “no” to indicate that the
government failed to prove the offense involved at least 500 grams. Id. The Presentence
Report (“PSR”) nevertheless relied on trial testimony to attribute 2.95 kilograms to


         1
          We focus our discussion on the single question the panel urged the court to review en banc:
whether the district court violated White’s Sixth Amendment right to trial by jury by relying on acquitted
conduct for sentencing. The panel did not believe the other issues raised by White justified reversal of the
judgment below and we agree.
No. 05-6596        United States v. White                                          Page 4


Mendez, prompting his objection to a sentence grounded on a drug quantity not found
beyond a reasonable doubt by the jury. Id. Concluding that the PSR accurately reflected
facts proved by a preponderance of the evidence, the district court overruled the
objection and sentenced Mendez to the low end of the applicable Guidelines range. See
id. at 425 & n.1. On appeal, a panel of this court rejected the defendant’s Sixth
Amendment right-to-trial-by-jury challenge, sanctioning the district court’s use of
acquitted conduct in calculating an advisory Guidelines range. Id. at 426–27 & n.2. The
Mendez panel reached this holding by relying on United States v. Watts, 519 U.S. 148
(1997) (per curiam), which the Supreme Court decided after Congress passed the
Sentencing Reform Act (“SRA”).

       Though Watts examined this issue from a double-jeopardy perspective, Watts
regarded acquitted conduct as providing the sentencing court with “[h]ighly relevant—if
not essential . . . information.” 519 U.S. at 151–52 (internal quotation marks omitted).
Relying on the different standards of proof that govern at trial versus sentencing, the
Court concluded “that 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.

       Watts preceded United States v. Booker, 543 U.S. 220 (2005), but the Booker
majority, which held that the mandatory guideline system was unconstitutional, viewed
the two decisions as not inconsistent. Id. at 240–41. This circuit likewise recognizes
Watts’s continued vitality post-Booker, repeatedly holding “that sentencing courts may
still find facts using the preponderance-of-the-evidence standard.” Mendez, 498 F.3d at
426–27 (citing, e.g., United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006)); see also
United States v. Brika, 487 F.3d 450, 458–60 (6th Cir.) (holding that Booker did not
disturb Watts and that a post-Booker court may consider even acquitted conduct if it
finds facts supporting that conduct by a preponderance of the evidence), cert. denied,
128 S. Ct. 341 (2007).

        Mendez accords with the view expressed by each of our sister circuits that
Booker did not alter the Watts position on acquitted conduct: “Watts remains good law.”
No. 05-6596        United States v. White                                          Page 5


United States v. Magallanez, 408 F.3d 672, 684 n.1 (10th Cir. 2005); see, e.g., United
States v. Faust, 456 F.3d 1342, 1348 (11th Cir. 2006) (same); United States v. Hayward,
177 F. App’x 214, 215 (3d Cir. 2006) (same); United States v. Ashworth, 139 F. App’x
525, 527 (4th Cir. 2005) (same). The “core principle of Watts lives on and [a] district
court [may] constitutionally consider . . . acquitted conduct.” United States v. Mercado,
474 F.3d 654, 657 (9th Cir. 2007), cert. denied, 128 S. Ct. 1736 (2008); see also United
States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008) (same); United States v. Horne, 474
F.3d 1004, 1006–07 (7th Cir.) (same), cert. denied, 127 S. Ct. 2957 (2007); United
States v. Farias, 469 F.3d 393, 399 (5th Cir. 2006) (same); United States v. Gobbi, 471
F.3d 302, 313–14 (1st Cir. 2006) (“Post-Booker, the law has not changed . . .; acquitted
conduct, if proved by a preponderance of the evidence, still may form the basis for a
sentencing enhancement.”); United States v. Vaughn, 430 F.3d 518, 527 (2d Cir. 2005)
(“[D]istrict courts may find facts relevant to sentencing by a preponderance of the
evidence, even where the jury acquitted the defendant of that conduct . . . .”).

       The dissent sees things differently. It concedes that Watts survived Booker and
that Watts rejected (and continues to reject) a Fifth Amendment double-jeopardy
challenge to the use of acquitted conduct at sentencing. But it insists that Watts is
irrelevant here because White premises his argument not on the Fifth Amendment, but
on the Sixth Amendment. In one sense, the dissent is correct. As Booker itself
recognized, Watts’s rejection of a double-jeopardy challenge to the use of acquitted
conduct at sentencing did not close the door on subsequent Sixth Amendment challenges
to sentences based on judge-found facts. Booker, 543 U.S. at 240–41 & n.4. Thus,
although a court may properly look to facts underlying acquitted conduct in sentencing,
the Sixth Amendment remains a backstop. See Apprendi v. New Jersey, 530 U.S. 466,
490 (2000) (“[A]ny fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”); see also Blakely v. Washington, 542 U.S. 296, 303–04 (2004) (same).

       The dissent also is correct in another sense. Had the district court in this case
relied on acquitted conduct in determining the range under a mandatory guidelines
No. 05-6596         United States v. White                                            Page 6


regime, that sentence would have violated the Sixth Amendment as interpreted in
Booker. For the same reason that Booker precluded district courts from finding
sentencing facts that ratcheted up mandatory Guidelines ranges, it would have prevented
district courts from doing the same thing with respect to findings related to acquitted
conduct.

        But these observations do not show that the Sixth Amendment prevents a district
court from relying on acquitted conduct in applying an advisory guidelines system. In
the post-Booker world, the relevant statutory ceiling is no longer the Guidelines range
but the maximum penalty authorized by the United States Code. See United States v.
Sexton, 512 F.3d 326, 330 (6th Cir.) (“Since defendants were sentenced under an
advisory Guidelines scheme, the maximum statutory penalty that the district court could
impose was determined by the statute of conviction, rather than by a Guidelines range
calculated using only jury findings.”), cert. denied, — S. Ct. —, 2008 WL 3484875
(2008). This point too enjoys unanimity among the courts of appeals. See, e.g., Settles,
530 F.3d at 923 (“For Sixth Amendment purposes, the relevant upper sentencing limit
established by the jury’s finding of guilt is thus the statutory maximum, not the advisory
Guidelines maximum . . . .”); United States v. Grier, 475 F.3d 556, 566 (3d Cir. 2006)
(en banc) (same), cert. denied, 128 S.Ct. 106 (2007); United States v. Jiminez, 498 F.3d
82, 87 (1st Cir. 2007) (same); United States v. Green, 162 F. App’x 283, 284 (5th Cir.
2006) (per curiam) (same); United States v. Crosby, 397 F.3d 103, 109 n.6 (2d Cir. 2005)
(same), abrogated on other grounds as recognized in United States v. Lake, 419 F.3d
111, 113 n.2 (2d Cir. 2005); United States v. Duncan, 400 F.3d 1297, 1303 (11th Cir.
2005) (same); United States v. Smith, 413 F.3d 778, 781 (8th Cir. 2005) (same). So long
as the defendant receives a sentence at or below the statutory ceiling set by the jury’s
verdict, the district court does not abridge the defendant’s right to a jury trial by looking
to other facts, including acquitted conduct, when selecting a sentence within that
statutory range.

        Neither White nor the dissent offers any explanation why sentences based on
acquitted conduct differ for Sixth Amendment purposes from any other sentence driven
No. 05-6596        United States v. White                                         Page 7


by judge-found facts but falling within the statutorily defined sentencing range. And
they offer no explanation why that claim makes sense post-Booker. By freeing a district
court to impose a non-guidelines sentence, Booker pulled out the thread that holds
White’s Sixth Amendment claim together.

       The dissent also errs in saying that defendant is being sentenced to additional
years “for three crimes the jury in its verdict said he did not commit.” The jury verdict
says no such thing. It says something very different—that the conduct had not been
proved beyond a reasonable doubt. Lawyers have long recognized the distinction
between proof beyond a reasonable doubt—the standard for criminal conviction—and
proof by a preponderance of the evidence—the standard for civil trials. Laypersons have
become familiar with the distinction from the pair of O.J. Simpson trials, in which one
jury found the crime not proved beyond a reasonable doubt, but another jury found civil
liability by a preponderance of the evidence.

       White thus is not being “sentenced for acquitted conduct” when White’s
sentencing judge takes that conduct into account in determining a sentence for the crime
of which the White was convicted, as long as the sentence imposed falls within the range
prescribed by law for that convicted conduct. Taking acquitted conduct into account
unquestionably was permitted before the Guidelines were instituted, when a judge could
sentence anywhere up to the maximum for convicted conduct, for any number of
unstated reasons, including presumably a mere suspicion that the defendant also
committed what the jury was not convinced of beyond a reasonable doubt. Taking
acquitted conduct into account was not barred during the regime of mandatory
Guidelines. See Watts, 519 U.S. at 151–52. Now that the Guidelines are advisory—a
regime that floats between the previous two regimes—it seems particularly unusual to
say that taking acquitted conduct into account all of a sudden is not permitted. It is
permitted for the limited purpose of determining the sentence for convicted conduct,
which must be shown by a preponderance of the evidence.

       Nor does the dissent’s reliance on the Canania decision advance its position.
When a layperson such as Juror #6 in the Canania case expresses frustration that the
No. 05-6596        United States v. White                                          Page 8


court system does not seem to respect the juror’s contribution, the best response is not
to confirm the misunderstanding; it is to explain that indeed the juror’s contribution is
being faithfully acted upon, that under our system judges have the power within a
statutory range to determine the punishment for the crime that the juror did find beyond
a reasonable doubt, and that the judge may take into account facts about the defendant
that the judge determines to be more probable than not, even though the jurors could not
find those facts beyond a reasonable doubt. That difference is a cornerstone of criminal
procedure, and it is the distinction that has been embedded in our common law legal
tradition for hundreds of years.

       We granted en banc review to decide whether the district court’s consideration
of acquitted conduct in sentencing passes constitutional muster. Our sister circuits agree
that it does, insofar as enhancements based on acquitted conduct do not increase a
sentence beyond the maximum penalty provided by the United States Code. We follow
suit, and in doing so affirm Mendez as the law of this circuit.

                                            III

       District of Columbia Circuit Judge Kavanaugh in the Settles case acknowledged
that defendants understandably perceive unfairness when sentencing courts rely on
acquitted conduct. 530 F.3d at 923–24. The Settles court observed that “Congress or
the Sentencing Commission certainly could conclude as a policy matter that sentencing
courts may not rely on acquitted conduct. But under binding precedent, the Constitution
does not prohibit a sentencing court from relying on acquitted conduct.” Id. at 924.

       To say that district court judges may enhance a defendant’s sentence based on
acquitted conduct, however, is not to say that they must do so. First, and most
obviously, a factual presentation that fails to persuade a jury beyond a reasonable doubt
may well fail to persuade a judge by a preponderance of the evidence. Second, one of
the central points of Booker, highlighted by Kimbrough v. United States, 128 S. Ct. 558,
564 (2007), is that a district court judge may disagree with the application of the
Guidelines to a particular defendant because the Guidelines range is too high or too low
to accomplish the purposes set forth in § 3553(a). If the district court judge concludes
No. 05-6596        United States v. White                                          Page 9


that the sentence produced in part by these “relevant conduct” enhancements “fails
properly to reflect § 3553(a) considerations,” Rita v. United States, 127 S. Ct. 2456,
2465 (2007), the judge may impose a lower sentence, including, if reasonable, a lower
sentence that effectively negates the acquitted-conduct enhancement. Third, a district
court that enhances a sentence based on acquitted conduct, in fulfilling its duty to
“adequately explain the chosen sentence to . . . promote the perception of fair
sentencing,” Gall v. United States, 128 S. Ct. 586, 597 (2007), should articulate how and
why, in its judgment, such conduct appropriately influenced its § 3553(a) analysis with
respect to the specific defendant and specific crime at issue.

                                            IV

       We determine that the district court properly exercised its authority in sentencing
White and thus affirm his conviction.
No. 05-6596        United States v. White                                        Page 10


                                 _________________

                                     DISSENT
                                 _________________

       MERRITT, Circuit Judge, dissenting. 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
No. 05-6596        United States v. White                                        Page 11


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. Sentencing Facts

       White was the driver of the getaway car in a Kentucky bank robbery. Two other
people entered the bank and absconded with $101,000 after one of them threateningly
discharged a firearm inside the bank without injuring anyone. White did not enter the
bank or use a weapon. One of the robbers thereafter discharged a firearm from the car
driven by White during the course of an extended high-speed police chase. White was
charged with one count of conspiracy to commit armed bank robbery; one count of
armed bank robbery; one count of conspiracy to use and carry a firearm in relation to a
bank robbery; two counts of aiding and abetting the use and discharge of a firearm; and
one count of possession of a firearm with an obliterated serial number. He was
convicted only of aiding and abetting armed bank robbery and possession of a firearm
with an obliterated serial number. He was acquitted on the other four counts.

       Although rejecting White’s defense of duress, the jury acquitted him of Count
1, charging him with conspiracy to rob the bank. More importantly for purposes of this
case, the jury acquitted him of Counts 3, 4, and 5, charging respectively a conspiracy to
use and carry a firearm and two substantive counts of aiding and abetting the “using,
carrying, brandishing and discharging” of a firearm in the robbery. In other words,
White was convicted of bank robbery but acquitted of all counts charging him with the
use of weapons in connection with the robbery. Despite the acquittal of the use-of-
weapons charges, the sentencing judge increased the sentence as though the jury had
found White guilty of these weapons charges.

       The parties agree that White’s base offense level was 20 with no prior criminal
record, an offense level carrying a recommended sentencing range of 33 to 41 months
in prison. The jury found that a financial institution was robbed, triggering a two-level
increase, and that more than $50,000 but less than $250,000 was taken, triggering
another two-level increase, bringing the offense level to 24 (carrying a recommended
No. 05-6596        United States v. White                                        Page 12


sentence range of 51 to 63 months). These findings were a part of the jury verdict, and
White does not challenge them or the resulting calculations.

       In addition, based on the jury verdict rejecting White’s testimony that he was
forced to participate in the robbery, the sentencing judge increased the offense level by
two levels for perjury, from level 24 to level 26. The judge also found that the extended
police chase during which White drove the car through a road block and then crashed
the car into another police road block endangered lives and deserved an additional two-
level increase, bringing the offense level up to 28, which carries a recommended
sentencing range of 78 to 97 months. The two-level enhancement for perjury is implicit
in the jury’s verdict rejecting White’s testimony that he was forced or coerced into
participating in the bank robbery as a getaway driver. The jury could not have reached
its verdict if it had believed White’s testimony. Thus, the perjury adjustment is based
on a jury finding. During his testimony, White expressly admitted that he drove the car
in a high-speed police chase (as the previous panel of our court found) “ending when
White crashed his car into a road block, and the car burst into flames.”

       White’s challenge to his sentence stems from the additional ten-level increase
found by the sentencing judge: a seven-level increase imposed by the sentencing judge
for aiding in another robber’s discharge of a weapon inside the bank — a specific charge
in the conspiracy and substantive counts that the jury acquitted him of — and a three-
level increase for aiding another robber in firing “at least two gunshots at a pursuing
police car” — another specific charge for which White was acquitted. The resulting
offense level of 38 carried a recommended sentencing range of 235 to 293 months, and
the judge sentenced White to 264 months, or 22 years. The two judicial upward
adjustments for acquitted charges account for approximately 14 years of the 22-year
sentence.
No. 05-6596        United States v. White                                         Page 13


                II. The Sixth Amendment and Judicial Factfinding

                               A. As-Applied Violations

       Over the past decade, the Supreme Court has begun the process of bringing
sentencing guidelines, state and federal, into line with the Sixth Amendment and Article
III, § 2 and our common law heritage. In Apprendi v. New Jersey, the Supreme Court
established that, under the Sixth Amendment, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490
(2000). In Blakely v. Washington, the Court went further, clarifying that “the ‘statutory
maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury verdict or admitted by the defendant.” 542
U.S. 296, 303 (2004). That is, “the maximum [a judge] may impose without any
additional findings.” Id. at 304 (emphasis in original). More recent cases have reiterated
the same point. In Cunningham v. California, for example, the Supreme Court said: “If
the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find
an additional fact to impose the longer term, the Sixth Amendment requirement is not
satisfied.” 127 S. Ct. 856, 869 (2007).

       In United States v. Booker, the Court applied the Apprendi-Blakely framework
to the United States Sentencing Guidelines and determined that the section of the
Sentencing Reform Act that made the Guidelines mandatory violated the Sixth
Amendment and needed to be excised. 543 U.S. 220, 258-65 (2005). The Court said in
Booker: “More important than the language used in our holding in Apprendi are the
principles we sought to vindicate. . . . They are not the product of recent innovations in
our jurisprudence, but rather have their genesis in the ideals our constitutional tradition
assimilated from the common law.” Id. at 238. This language echoed the reasoning of
Blakely:

       Our commitment to Apprendi in this context reflects not just respect for
       longstanding precedent, but the need to give intelligible content to the
       right to jury trial. That right is no mere procedural formality, but a
No. 05-6596             United States v. White                                                       Page 14


         fundamental reservation of power in our constitutional structure. Just as
         suffrage ensures the people’s ultimate control in the legislative and
         executive branches, jury trial is meant to ensure their control in the
         judiciary.
524 U.S. at 305-06.

         Whether the Court’s solution in Booker actually resolved the Sixth Amendment
problem posed by the Sentencing Guidelines is debatable.1 But it is clear that the post-
Booker development of reasonableness review has opened the door for Sixth
Amendment challenges to sentences within the statutory range authorized by the jury’s
verdict. In their concurring opinion in Rita v. United States, Justices Scalia and Thomas
explained how substantive-reasonableness review would inevitably produce sentences
whose legitimacy turns on the existence of certain facts, which, under the Sixth
Amendment, must be found by a jury or admitted by the defendant. 127 S. Ct. 2456,
2477 (2007) (Scalia, J., concurring in part and concurring in the judgment). They
illustrate the point with the following hypothetical:

         [T]he base offense level for robbery under the Guidelines is 20, which,
         if the defendant has a criminal history of I, corresponds to an advisory
         range of 33-41 months. If, however, a judge finds that a firearm was
         discharged, that a victim incurred serious bodily injury, and that more
         than $5 million was stolen, then the base level jumps by 18, producing
         an advisory range of 235-293 months. When a judge finds all of those
         facts to be true and then imposes a within-Guidelines sentence of 293
         months, those judge-found facts, or some combination of them, are not
         merely facts that the judge finds relevant in exercising his discretion;
         they are the legally essential predicate for his imposition of the 293-
         month sentence. His failure to find them would render the 293-month
         sentence unlawful. That is evident because, were the district judge
         explicitly to find none of those facts true and nevertheless to impose a
         293-month sentence (simply because he thinks robbery merits seven
         times the sentence that the Guidelines provide) the sentence would surely
         be reversed as unreasonably excessive.



         1
           See, e.g., Michael W. McConnell, The Booker Mess, 83 DEN. U. L. REV. 665, 677 (2006) (“The
most striking feature of the Booker decision is that the remedy bears no logical relation to the constitutional
violation.”); Douglas A. Berman, Conceptualizing Booker, 38 ARIZ. ST. L.J. 387, 387 (2006) (“Read
independently, each majority opinion in Booker seems conceptually muddled; read together, the two
Booker rulings seem almost conceptually nonsensical.”).
No. 05-6596        United States v. White                                         Page 15


Id. Thus, “for every given crime there is some maximum sentence that will be upheld
as reasonable based only on the facts found by the jury or admitted by the defendant,”
from which it follows that “[e]very sentence higher than that is legally authorized only
by some judge-found fact,” a sentencing process that is unlawful because all facts
needed to authorize a sentence “must be found by the jury beyond a reasonable doubt
in order ‘to give intelligible content to the right of jury trial.’” Id. (quoting in part
Blakely, 542 U.S. at 305).

       The majority in Rita avoided this point as a mere hypothetical that did not need
to be addressed at the time. See id. at 2466 (majority opinion). But the case at hand
raises this very issue, and we must address it now. White’s sentence is arguably even
more problematic than the sentence in the hypothetical because the jury actually
acquitted White of the conduct that led to more than half of his sentence, but the Sixth
Amendment violation is identical. White’s 22-year sentence is made possible only by
reference to judge-found facts about the discharge of firearms during the crime. Absent
those facts, the recommended Guidelines range would be 78 to 97 months. Against that
backdrop, a 264-month sentence would certainly be reversed as unreasonable. As such,
those judge-found facts are necessary for the lawful imposition of the sentence, thus
violating the Sixth Amendment right to a jury trial: “[E]xcessive sentences within the
statutory range, and the ability of appellate courts to reverse such sentences, inexorably
produces, in violation of the Sixth Amendment, sentences whose legality is premised on
a judge’s finding some fact (or combination of facts) by a preponderance of the
evidence,” id. at 2476. Therefore, White’s sentence must be reversed.

                             B. Offense/Offender Distinction

       To ensure that such unconstitutional sentences are not imposed in the future,
district courts should calculate the applicable Guidelines range by relying only on facts,
other than a prior conviction, that have been found by a jury or admitted by the
defendant. However, I recognize the value of some judicial factfinding — with
indeterminate, non-mathematical consequences — for the purpose of creating
individually tailored sentences. Therefore, I conclude that our Court, and federal courts
No. 05-6596         United States v. White                                         Page 16


generally, should follow the “offense/offender” distinction offered by Justices Kennedy
and Breyer in their separate opinion in Cunningham v. California, 549 U.S. 276, 296-97
(2007) (Kennedy, J., dissenting), a solution suggested in a law review article cited in
their opinion, Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4
OHIO ST. J. CRIM. L. 37, 55-58 (2006). In short, offense conduct must be defined by the
defendant’s admissions and the jury’s verdict. Offender characteristics, on the other
hand, may be found by a judge.

        By attaching the jury-trial right to crimes, rather than to any and all decisions
related to the accused, the constitutional text suggests a basis for the distinction between
offense conduct and offender characteristics. See Douglas A. Berman, Conceptualizing
Blakely, 17 FED. SENT’G REP. 89, 89 (2004). The distinction also reinforces “the
distinctive institutional competencies of juries and judges, and the distinctive judicial
ambit of trial and sentencings.” Id. In their dissent in Cunningham, Justices Kennedy
and Breyer suggest that, for “factors exhibited by the defendant,” a “judicial
determination” is appropriate. But they do not make it clear that the judicial process
with regard to offender characteristics or “factors” should be an indeterminate one, in
which a particular fact would not trigger a specific, mathematical increase or decrease
in the sentence. In a footnote, the majority in Cunningham questions the validity of what
it sees as particularized, determinate judicial factfinding on the offender side of the
offense/offender divide. See 549 U.S. at 291 n.14. But determinate, fixed judicial
factfinding on offender characteristics is not a necessary part of the concept advanced
by Justices Kennedy and Breyer. The law review article that they acknowledge as the
source of their opinion explains that on offender characteristics issues the judge should
not find facts by engaging in determinate sentencing but should follow the
constitutionally valid, indeterminate sentencing system of the Williams era, “when the
rehabilitative ideal held sway”:

        In other words, whenever offense facts have fixed and predictable
        sentencing consequences, then the jury, as the preferred fact-finder, must
        pass on them. Judges remain authorized, however, to consider a range
        of facts as part of exercising reasoned judgment at sentencing.
No. 05-6596        United States v. White                                         Page 17


Berman & Bibas, supra, at 58 (relying on Williams v. New York, 337 U.S. 241, 251
(1949), which states that an indeterminate sentencing system that takes rehabilitation and
specific deterrence goals seriously enables judges to exercise “their judgment” without
violating the Constitution). The law professors conclude their article as follows:

        The modest vision of constitutional sentencing law set forth would
        preserve the jury’s core function. At the same time, it would leave
        healthy room for other actors and jurisdictions to experiment and find
        workable solutions. Reasoned sentencing opinions would over time
        develop into a common law of sentencing, as diverse judges articulated
        consensus views about which factors should matter. Reasoned opinions
        would be more transparent than federal mathematical mumbo-jumbo.
Id. at 71.

        A rule foreclosing the judicial determination of offense conduct does not
necessarily mean that the trial judges in sentencing must forget the evidence they heard
at the jury trial. On the offender characteristics side of the divide, sentencing judges
may consider all that they have heard when it comes to Williams-era-style, indeterminate
assessments of defendants’ prospects for rehabilitation, risk of future harmful conduct,
and other similar considerations. In this case, however, it is clear that the sentencing
judge erred in assessing a fixed, determinate, 14-year sentence enhancement based on
judge-found offense conduct. The sentence must, therefore, be reversed.

                         III. The Use of Acquitted Conduct

        The second sufficient reason to reverse White’s sentence is that it relies on
acquitted conduct, a subset of judge-found facts that raises a host of unique concerns.
See United States v. Canania, 532 F.3d 764 (8th Cir. 2008) (Bright, J., concurring)
(“[T]he unfairness perpetuated by the use of ‘acquitted conduct’ at sentencing in federal
district courts is uniquely malevolent.”). The majority asserts that United States v. Watts
is controlling. After noting that Watts survived Booker — a proposition that I do not
dispute — the majority implies that we would be overruling the Supreme Court even to
treat the question presented here as an open one. But the question to ask is not whether
Watts is still good law; the question is whether Watts addresses this particular question.
No. 05-6596            United States v. White                                                    Page 18


After showing why Watts cannot be the endpoint of our analysis, I will explain why the
use of acquitted conduct at sentencing defies the Constitution, our common law heritage,
the Sentencing Reform Act, and common sense.

                                               A. Watts

         In United States v. Booker, the Court explained that “in Watts . . . we held that
the double jeopardy clause permitted a court to consider acquitted conduct in sentencing
a defendant under the Guidelines.” 543 U.S. 220, 240 (2005). The Court then held that
Watts is irrelevant to the issue of the use of acquitted conduct generally or under the
Sixth Amendment because in Watts there was no “contention that the sentence
enhancement had exceeded the sentence authorized by the jury verdict in violation of the
Sixth Amendment. The issue . . . simply was not presented.” Id. The Court then went
on to explain:

         Watts, in particular, presented a very narrow question regarding the
         interaction of the Guidelines with the double jeopardy clause, and did not
         even have the benefit of full briefing or oral argument. It is unsurprising
         that we failed to consider fully the issues presented to us in these cases.

Id. The majority’s simple and single-minded reliance on Watts as authority for
enhancements based on acquitted conduct is obviously a mistake. It is a mistake that
other federal circuit courts have also made,2 but it is a mistake nonetheless. Therefore,
we should treat this as an open question and consider whether the use of acquitted
conduct to increase criminal sentences is permitted.

         2
           Numerous courts of appeals assume that Watts controls the outcome of both the Fifth and Sixth
Amendment challenges to the use of acquitted conduct, even after Booker explicitly limited Watts’s reach
to the Fifth Amendment double jeopardy question presented in that case and made it clear that Watts does
not decide any issue other than double jeopardy. See, e.g., United States v. Magallanez, 408 F.3d 672,
684-85 (10th Cir. 2005); United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005); United States v. Price,
418 F.3d 771, 787-88 (7th Cir. 2005); United States v. Ashworth, 139 Fed. Appx. 525, 527 (4th Cir. 2005)
(per curiam); United States v. Hayward, 117 Fed. Appx. 214, 215 (3d Cir. 2006); United States v. Farias,
469 F.3d 393, 399 (5th Cir. 2006); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006). Other courts
have recognized that Watts is not controlling on the Sixth Amendment question, only to be influenced by
the other courts, supra, who erroneously presume the contrary. See, e.g., United States v. Dorcely, 454
F.3d 366, 371 (D.C. Cir. 2006); United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007). Indeed, only
one court has recognized that Watts has absolutely no bearing on a Sixth Amendment challenge and has
gone on to address the issue absent any reliance on that case. See United States v. Duncan, 400 F.3d 1297,
at 1304-05 & n.7 (11th Cir. 2005).
No. 05-6596             United States v. White                                                      Page 19


                     B. Acquitted Conduct and Constitutional History

         It is hard to overemphasize the importance of trial by jury for our revolutionary
ancestors who wrote the Declaration of Independence, framed the Constitution, ratified
it in state conventions, and explained it in the Federalist Papers.3 Suffice it here to
mention a few historical facts. The Declaration of Independence took George III to task
for “obstruct[ing] the Administration of Justice” by “depriving us in many cases of the
benefit of Trial by Jury,” which included punishing colonists after the jury had acquitted
them.4 The Constitution, Article III, § 2 (“The Trial of all Crimes . . . shall be by jury”)
and its Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right
to a . . . public trial, by an impartial jury”) demonstrate the importance of restraining
judges, legislators, and sentencing commissioners from punishing people for crimes the
jury has rejected.

         Our case law over the last 200 years has repeatedly emphasized this point. As
the Supreme Court explained in Apprendi:

         As a general rule, criminal proceedings were submitted to a jury after
         being initiated by an indictment containing “all the facts and
         circumstances which constitute the offence, . . . stated with such certainty
         and precision, that the defendant . . . may be enabled to determine the
         species of offence they constitute, in order that he may prepare his
         defence accordingly . . . and that there may be no doubt as to the
         judgment which should be given, if the defendant be convicted.” J.
         ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL CASES 44 (15th ed.
         1862). The defendant’s ability to predict with certainty the judgment
         from the face of the felony indictment flowed from the invariable linkage
         of punishment with crime. See 4 BLACKSTONE 369-370 (after verdict,
         and barring a defect in the indictment, pardon, or benefit of clergy, “the



         3
           See, e.g., THE FEDERALIST No. 83 (Alexander Hamilton) (“The friends and adversaries of the
plan of the convention, if they agree in nothing else, concur at least in the value they set upon the trial by
jury; or if there is any difference between them it consists in this: the former regard it as a valuable
safeguard to liberty; the latter represent it as the very palladium of free government.”); see also Apprendi
v. New Jersey, 530 U.S. 466, 498 (2000) (Scalia, J., concurring) (noting that “the jury-trial guarantee was
one of the least controversial provisions of the Bill of Rights”).
         4
         For an extended treatment of historical background in American trial by jury, See THURSTON
GREENE, THE LANGUAGE OF THE CONSTITUTION: A SOURCEBOOK AND GUIDE TO THE IDEAS, TERMS, AND
VOCABULARY USED BY THE FRAMERS OF THE UNITED STATES CONSTITUTION 860-707 (1991).
No. 05-6596         United States v. White                                           Page 20


        court must pronounce that judgment, which the law hath annexed to the
        crime”).
Apprendi v. New Jersey, 530 U.S. 466, 478-79 (2000); see also id. at 510 (Thomas, J.,
concurring) (citing a leading treatise on criminal procedure at common law, which stated
that “‘the indictment must . . . contain an averment of every particular thing which enters
into the punishment’”) (quoting 1 J. BISHOP, LAW OF CRIMINAL PROCEDURE § 80, at 51
(2d ed. 1872)). In other words, it has long been required that all offense-related facts
underlying the sentence first be “stated with . . . certainty and precision” in the
indictment and then proved beyond a reasonable doubt to the jury. To permit facts
rejected by the jury to serve as the basis for the sentence would sever “the invariable
linkage of punishment with crime.” Furthermore, we should remember that when
Blackstone, quoted above, published his treatise in the 1760s, the English-speaking
people had enjoyed the right of trial by jury in criminal cases for more than 500 years,
and common law lawyers and judges, from Bracton in 1250 to Lord Coke in 1620 to
Blackstone, had come to revere their unique institution of liberty. See 2 BRACTON ON
THE   LAWS AND CUSTOMS OF ENGLAND 386-87 (George E. Woodbine ed., Samuel E.
Thorne trans., 1968) (explaining, in the thirteenth century, that a criminal defendant “has
the power of choosing whether to place himself on a jury or defend himself by his
body”).

        Perhaps it will be contended that the use of acquitted conduct does not violate the
right to trial by jury because, in a literal sense, a defendant is still tried by a jury, even
when parts of its verdict is ignored during sentencing. The Founders were keenly aware,
though, that “the jury right could be lost not only by gross denial, but by erosion.” Jones
v. United States, 526 U.S. 227, 248 (1999). Indeed, they recognized the need to be
particularly circumspect about such incremental degradations, “‘which, under a variety
of plausible pretenses, may in time, imperceptibly undermine this best preservative of
LIBERTY.’” Id. at 248-49 (quoting A [New Hampshire] Farmer, No. 3, June 6, 1788,
quoted in THE COMPLETE BILL OF RIGHTS 477 (N. Cogan ed.1997)).
No. 05-6596           United States v. White                                                   Page 21


         Allowing the use of acquitted conduct at sentencing also eviscerates the jury’s
longstanding power of mitigation, a close relative of the power of jury nullification. As
the Supreme Court has noted:

         The potential or inevitable severity of sentences was indirectly checked
         by juries’ assertions of a mitigating power when the circumstances of a
         prosecution pointed to political abuse of the criminal process or endowed
         a criminal conviction with particularly sanguinary consequences. This
         power to thwart Parliament and Crown took the form not only of flat-out
         acquittals in the face of guilt but of what today we would call verdicts of
         guilty to lesser included offenses, manifestations of what Blackstone
         described as “pious perjury” on the jurors’ part.
Id. at 245 (quoting 4 W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 238-
39 (1769)). The “power to mitigate or nullify the law in an individual case is no
accident. It is part of the constitutional design — and has remained part of that design
since the Nation’s founding.” Rachel E. Barkow, Recharging the Jury: The Criminal
Jury’s Constitutional Role in an era of Mandatory Sentencing, 152 U. PENN. L. REV. 33,
36 (2003). A jury cannot mitigate the harshness of a sentence it deems excessive if a
sentencing judge may use acquitted conduct to sentence the defendant as though he had
been convicted of the more severe offense.

         This common law heritage is reflected in the fact that the overwhelming majority
of states do not use acquitted conduct at sentencing.5 Those who have surveyed the state
sentencing systems, including Phyllis J. Newton, the previous Staff Director of the U.S.
Sentencing Commission, and John Steer, recently retired General Counsel and Vice
Chair of the Commission, now concede that states have not followed the Commission
in allowing acquitted conduct to mechanically ratchet up sentences and that the federal
court’s use of acquitted conduct in calculating an advisory sentencing range should be




         5
           “Although indeterminate sentencing systems typically allow judges to consider prior misconduct
when sentencing, many states make an exception for acquitted conduct — conduct that formed the basis
of a charge resulting in an acquittal at trial.” NORA V. DEMLEITNER, ET AL., SENTENCING LAW AND POLICY
284 (2d ed. 2007). A handful of states permit the consideration of acquitted conduct at sentencing. See
State v. Huey, 505 A.2d 1242 (Conn. 1986); State v. Woodlief, 90 S.E. 137 (N.C. 1916); State v. Leiter,
646 N.W.2d 341 (Wis. 2002). But none goes so far as to require judges to do so, much less to mandate
an increased presumptive sentencing range because of acquitted conduct.
No. 05-6596           United States v. White                                                   Page 22


discontinued.6 See, e.g., Phyllis J. Newton, Building Bridges Between the Federal and
State Sentencing Commissions, 8 FED. SENT’G REP. 68, 69 (1995) (arguing that the
federal guidelines should be revised by “limiting acquitted conduct to within the
guideline range” in light of the fact that “[v]irtually all states, in contrast to the federal
system, have adopted an offense of conviction system under which uncharged conduct
generally remains outside the parameters of the guidelines”); An Interview with John
Steer, CHAMPION, Sept. 2008, at 42 (“The first change I would make . . . is to exclude
acquitted conduct from the guideline [1.B1.3]” in part because “the federal guidelines
[are] alone among sentencing reform efforts in using acquitted conduct to construct the
guideline range”). The American Law Institute and American Bar Association have also
joined the ranks of those formally opposed to the use of acquitted conduct at sentencing.7
Thus the states are still basically following the common law limitations on judicial
behavior found in the language of the historical documents discussed above, creating a
notable conflict within our federal system.8

                           C. The Sentencing Reform Act of 1984

         The Sentencing Reform Act of 1984 itself reflects the same type of
offense/offender distinction described above and should be read to foreclose the use of
acquitted conduct at sentencing. As to offense conduct, the statute requires that the



         6
          Even accounting for those few states who permit the use of acquitted conduct at sentencing,
supra note 5, the federal system is alone in requiring sentencing judges to include acquitted conduct in
calculating an advisory sentencing range. See U.S.S.G. § 1B1.3 (2006) (requiring enhancements for all
relevant conduct); ALI, Model Penal Code: Sentencing, Tentative Draft No. 1 (approved May 16, 2007),
§ 6B.06, cmt. e at 227 (“The federal sentencing system is the only system in the United States to require
sentencing courts to base guidelines sentences upon both conviction and nonconviction offenses.”).
         7
          See ALI, Model Penal Code: Sentencing, Tentative Draft No. 1 (approved May 16, 2007),
§ 6B.06; ABA Standards for Criminal Justice, Sentencing, § 18-3.6 (3d ed. 1994).
         8
          Not only is there a conflict between the federal courts and the state courts over the use of
acquitted conduct at sentencing, there is a wide-open conflict between federal and state courts after
Blakely, Booker, Rita, and Cunningham concerning the continued use of judge-found facts to allow
sentencing judges to ratchet up offense levels. See, e.g., State v. Gomez, 239 S.W.3d 733, 735, 738-40
(Tenn. 2007) (“Upon further review following Cunningham, we now conclude that the trial court’s
enhancement of the Defendants’ sentences on the basis of judicially determined facts other than the
Defendants’ prior convictions violated the Defendants’ constitutional rights under the Sixth Amendment
to the United States Constitution.”); State v. Allen, 615 S.E.2d 256, 264-65 (N.C. 2005) (interpreting
Blakely to foreclose judge-found offense conduct facts to increase sentencing level beyond facts
corresponding to the jury verdict); State v. Hughes, 110 P.3d 192 (Wash. 2005) (same).
No. 05-6596              United States v. White                                                 Page 23


defendant be “convicted” of the offense and does not allow the use of acquitted conduct.
Congress provided a “convicted” offense sentencing system just as the states have
created and just as the common law and the Constitution contemplate. In the Act that
created the Sentencing Commission and defined its authority, the Commission “in
establishing categories of offenses for use in the Guidelines” may use “the circumstances
under which the offense was committed.” 28 U.S.C. § 3994(c) (emphasis added). Under
the Act, the Commission must stick to “convicted” conduct when providing for an
“incremental penalty for each offense in a case in which that defendant is convicted of
(A) multiple offenses committed in the same course of conduct . . . and (B) multiple
offenses committed at different times.” Id. at § 994(L) (emphasis added).9

         No language of the Act allows what our court has done here “in imposing an
incremental penalty for” acquitted or unconvicted offenses. The 1984 Act repeatedly
refers to a “defendant who has been found guilty of the offense,” e.g., 18 U.S.C. § 3551
(emphasis added), which describes the scope of the Act’s provisions and 18 U.S.C.
§ 3552(a), (b), and (c), and §§ 3554, 3555, 3556, 3561, 3571, and 3581. In no provision
regarding offense conduct does the statute authorize the use of acquitted or unconvicted
conduct. Moreover, when Congress instructed sentencing judges to rectify sentencing
disparity, it applied this idea only to “defendants with similar records who have been
found guilty of similar conduct.” 18 U.S.C. § 3553(a)(6) (emphasis added).10



         9
            This argument was cursorily dismissed in Watts. See 519 U.S. at 154; id. at 168-69 (Stevens,
J., dissenting). Nevertheless, the Supreme Court itself admitted that Watts was neither fully briefed nor
argued and, consequently, that the case was not well considered. Id. at 171 (Kennedy, J., dissenting).
Several years later, the Court went on to limit Watts’s reach to the Fifth Amendment double-jeopardy
question then before it. See Booker, 542 U.S. at 240. For these reasons, the statutory argument based on
28 U.S.C. § 994(L) remains a valid one.
         10
              As the supplemental brief of amici curiae law professors who study federal sentencing points
out:
         The Supreme Court has instructed that statutory construction “should go in the direction
         of constitutional policy even though not commanded by it.” United States v. Johnson,
         323 U.S. 273, 276 (1944). As Judge Friendly explained, “the Constitution is itself a
         datum in the interpretation of a statute.” Henry J. Friendly, Benchmarks 210 (167).
         Accordingly, to the extent that the meaning of “offense” is ambiguous, the appropriate
         course is to interpret the SRA in a way that furthers the central role of the jury in
         sentencing as required by Apprendi, Blakely, and Booker.
Brief at 5-6.
No. 05-6596        United States v. White                                         Page 24


       On the other hand, on the offender characteristics side of the Guideline
calculation, the section of the statute following the section confining offense conduct to
“convicted” conduct, instructs the Commission and the courts to consider an open-ended
set of aggravating and mitigating offender characteristics including eleven specified
“matters,” such as “age,” “vocational skills,” “drug dependence,” “livelihood,” and
“criminal history.” 28 U.S.C. § 994(d). These considerations are consistent with an
individualized, indeterminate sentencing process that follows upon a Guideline
calculation based only on convicted offense conduct.             The result of such an
individualized sentencing process should produce a sentence that takes into account the
“characteristics of the defendant” and “the need . . . to promote respect for the law” and
“to provide the defendant with needed educational or vocational training, medical care,
or other correctional treatment.” 18 U.S.C. § 3553(a) (emphasis added). The statute
does not allow “retribution” as a consideration and advises the court to err on the side
of lenity by imposing a sentence “not greater than necessary” to accomplish the goals
of punishment and treatment. Id. It seems obvious that a sentencing system that allows
a judge to add 14 years based on acquitted conduct to the eight years for convicted
conduct is unauthorized and inconsistent with the statute, as well as inconsistent with the
Sixth Amendment and our common law heritage.

       There remains the overall question under the statute: How does this 14-year
sentence enhancement based on acquitted conduct “promote respect for law?” A
recently reported incident in the District Court in Washington, D.C., recounted by Judge
Bright in his concurring opinion in United States v. Canania, 532 F.3d 764 (8th Cir.
2008), answers that question. A jury had acquitted the defendant of several counts of
the indictment while convicting him on one count. When it learned that the judge was
considering sentencing him for the acquitted conduct, a juror wrote the judge a letter as
follows:

       It seems to me a tragedy that one is asked to serve on a jury, serves, but
       then finds their work may not be given the credit it deserves. We, the
       jury, all took our charge seriously. We virtually gave up our private lives
       to devote our time to the cause of justice, and it is a very noble cause as
       you know, sir. We looked across the table at one another in respect and
No. 05-6596       United States v. White                                       Page 25


       in sympathy. We listened, we thought, we argued, we got mad and left
       the room, we broke, we rested that charge until tomorrow, we went on.
       Eventually, through every hour-long tape of a single drug sale, hundreds
       of pages of transcripts, ballistics evidence, and photos, we delivered to
       you our verdicts.
       What does it say to our contribution as jurors when we see our verdicts,
       in my personal view, not given their proper weight. It appears to me that
       these defendants are being sentenced not on the charges for which they
       have been found guilty but on the charges for which the District
       Attorney’s office would have liked them to have been found guilty. Had
       they shown us hard evidence, that might have been the outcome, but that
       was not the case. That is how you instructed your jury in this case to
       perform and for good reason.
       May 16, 2008 Letter from Juror # 6 to The Honorable Richard W.
       Roberts, available at http://video1.washington-
       times.com/video/docs/letter.pdf (last accessed July 3, 2008).
This juror’s reaction is the same, I believe, as the reaction that the drafters of the
Declaration of Independence, the Constitution, and the Sentencing Reform Act of 1984
would have upon learning of this 14-year additional sentence for acquitted conduct
imposed on the defendant here.
