I Don't Think the Founders Had This In Mind.

The district court imposed a twenty-year sentence on Lynch for the Hobbs Act offense (Count I) [Ed.which prohibits actual or attempted robbery or extortion affecting interstate or foreign commerce]. In a special interrogatory the jury determined that the government had failed to prove beyond a reasonable doubt that Lynch had murdered Carreiro. However, the district court found by clear and convincing evidence that Lynch had participated in the murder and therefore cross-referenced United States Sentencing Guidelines Manual (U.S.S.G.) § 2A1.1, the first-degree murder guideline, as required by U.S.S.G. § 2B3.1(c)(v).

The Supreme Court has held that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge. United States v. Watts, 519 U.S. 148, 157 (1997). In this case, Lynch was not found innocent of a charge of murdering Carreiro. In response to the special interrogatory, the jury merely found that they did not unanimously agree that the government had established Lynch's murder of Carreiro by proof beyond a reasonable doubt. It was therefore not error for the court to make its own finding in sentencing Lynch.

In this circuit, when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction, the government must prove such a factor by clear and convincing evidence. United States v. Hopper, 177 F.3d 824, 833 (9th Cir. 1999). Since the use of the enhancement in this case increased the sentencing range by 105 to 203 months, the clear and convincing standard applied. There was sufficient evidence for such a finding by the district court and the defendant does not challenge the sufficiency of that evidence for the clear and convincing finding. There was no error in the court's use of the first degree murder cross reference.

Translation: Mr. Lynch was sentenced to 8 years and 9 months in prison for violating the Hobbs act, and an additional 8 years and two months for committing a murder for which he was acquitted by a jury. And this is from an en banc decision in the 9th Circuit, the supposedly most pro-defendant of all of the U.S. Circuit Courts of Appeal.

Via the Sentencing Law and Policy Blog.