31 May 2006

Misguided Priorities In Sentencing

The 10th Circuit held yesterday, in an unpublished opinion in the case of United States v. Ward, that acquitted conduct (in this case, a murder charge) can be used to enhance a sentence or depart upward using discretionary guidelines, but cannot be used as a basis to order restitution.

What Happened?

The case involved two charges, attempt to manufacturer methamphetamines and murder. The charges arose from a 2003 fire in Oklahoma that killed the defendant's girlfriend and a friend of his, and injured him and another friend, in a trailer which contained a meth lab. The federal courts had jurisdiction over the murder charge because one of the deceased was an enrolled member of an Indian tribe. The jury convicted him of attempting to manufacture meth, but acquitted him of murder.

The amount of drugs for purposes of sentencing was zero, as there was no proof that the drugs ended up being produced, even though the jury agreed that a lab had been constructed for that purpose. The twenty-five year old man (at the time of the offense) was sentenced to 327 months (i.e. 27 years, 3 months) in prison on the attempted manufacture of drugs charge.

Right On The Law

The sentencing and restitution results are consistent with U.S. Supreme Court and 10th Circuit precedent. With respect to sentencing, the cases include United States v. Watts, 519 U.S. 148, 154 (1997) (per curiam) and United States v. Moore, 130 F.3d 1414, 1416 (10th Cir. 1997). With respect to restitution, the cases include Hughey v. United States, 495 U.S. 411, 413 (1990) and United States v. Wainright, 938 F.2d 1096, 1098 (10th Cir. 1991).

The Law Is An Ass

This state of the law, however, is nonsensical. As the Court notes:

Because restitution is not criminal punishment in the Tenth Circuit, Blakely and Booker do not apply to restitution orders. United States v. Westover, 435 F.3d 1273, 1277 n.5 (10th Cir. 2006).

In other words, you have no more constitutional rights with regard to criminal restitution orders than you do in a civil case in the 10th Circuit. A criminal defendants' right to avoid restitution for acquitted conduct flows solely from an interpretation of the federal criminal restitution statute. 18 U.S.C. Section 3663.

In contrast, sentencing decisions, under the U.S. Supreme Court's rulings in Blakely, 542 U.S. 296 (2004), and Booker, 543 U.S. 220, 125 S. Ct. 738 (2005), are protected by a constitutional 6th Amendment right to have "[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict [to] be admitted by the defendant or proved to a jury beyond a reasonable doubt."

Yet, despite this lip service to a criminal defendant's right to a jury trial, a judge may ignore the jury's acquittal when setting a sentence with the minimum and maximum ranges allowed as a result of the conviction.

It is hard to see anything more pernious than a system that allows a judge to disallow restitution to the families of the deceased, because the defendant was not convicted of murder (about $11,000), yet permits him to face up to five more years in prison because of the same deaths, as happened in this case.

[T]he district court sentenced Ward to the top of the guideline range. In doing so, the court stated: "I am giving [Ward] the maximum under the guidelines, as I do believe he caused the death of two people." (R. Sentencing Tr. at 12.)


The key issue here is the legal principle. The case itself is hardly a cause celebre, for a number of reasons.

Admittedly, this is not the cleanest case of sentence enhancement based upon acquitted conduct. The guidelines range to use was arguably not itself based on acquitted conduct.

One of the key sentencing factors was that the defendant has two prior felonies (each seven years old and committed when he was eighteen years old) when was convicted of a crime statutory maximum sentence of twenty-five years or more. He had "two 1996 convictions for manufacturing and/or attempting to manufacture methamphetamine," a fact that was introduced at trial. The sentence would have been longer (a guideline offense level 37 rather than 34) if he had been convicted of murder as well, so that the acquittal did mean something, however slight. Another sentencing factor related to the deaths didn't factor into the result because it was overshadowed by the prior conviction factor.

But, the deaths themselves were the basis of the selection made within the guideline range of 262 to 327 months. Without the court's belief that he caused the deaths, conduct of which he was acquitted, he might have received as much as five and a half years less in prison.

The maximum sentence imposed likely would have been an abuse of discretion if acquitted conduct were not a permissible factor, although that wouldn't be a sure thing.

One argument at trial had been that the deadly fire was unrelated to the meth lab. But, it isn't clear if the jury could have instead ruled that he lacked an intent to kill and didn't have an available less included offense such as negligent homicide, or if they truly believed that causation was not established. One could sensibly believe that the meth lab did cause the fire, but that it was a result of only non-criminal negligence, rather than criminal negligence, recklessness, knowing conduct or intentional conduct. In that case, it would arguably be permissible to consider the deaths as an aggravating factor, as that wasn't the conduct for which he was acquitted. The trial court's opinion, however, left no indication that it made this fine distinction when it imposed its sentence.

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