United States v. Mercado ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-50624
v.  D.C. No.
CR-99-00083-
ROBERT MERCADO, JR., DOC-11
Defendant-Appellant.

UNITED STATES OF AMERICA,  No. 05-50860
Plaintiff-Appellee,
D.C. No.
v.
 CR-99-00083-
DANIEL BRAVO, aka’s Sporty; Seal DOC-7
G,
OPINION
Defendant-Appellant.

Appeals from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted
November 13, 2006—Pasadena, California
Filed January 22, 2007
Before: Betty B. Fletcher, Ferdinand F. Fernandez, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Fernandez;
Dissent by Judge B. Fletcher
857
UNITED STATES v. MERCADO 859
COUNSEL
Terry Amdur, Pasadena, California, for defendant-appellant
Mercado; Elliot E. Stanford, Pacific Palisades, California, for
defendant-appellant Bravo.
Robert E. Dugdale, Assistant United States Attorney, Orga-
nized Crime and Terrorism Section, Los Angeles, California,
for the plaintiff-appellee.
OPINION
FERNANDEZ, Circuit Judge:
Robert Mercado, Jr., and Daniel Bravo appeal their sen-
tences for conspiracy to violate RICO,1 18 U.S.C. § 1962(d),
and for conspiracy to aid and abet narcotics trafficking. 21
U.S.C. § 846. They assert that in calculating their sentences
under the United States Sentencing Guidelines, the district
court erred when it considered criminal activity which had
1
Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.
§§ 1961-68.
860 UNITED STATES v. MERCADO
been charged in the indictment, but which the jury determined
had not been proved beyond a reasonable doubt. We affirm.
BACKGROUND
As part of the government’s prosecution of members of the
Mexican Mafia, Mercado and Bravo were charged with: (1)
violating RICO, 18 U.S.C. § 1962(c); (2) RICO conspiracy,
18 U.S.C. § 1962(d); (3) conspiracy to distribute narcotics, 21
U.S.C. § 846; (4) five counts of violent crimes in aid of racke-
teering activity, 18 U.S.C. § 1959(a); (5) conspiracy to com-
mit murder; and (6) five counts of brandishing and
discharging a firearm. They were found guilty of the RICO
conspiracy and of the drug conspiracy, but were acquitted of
the other charges.
At sentencing,2 the district court stated that the question
was “whether it remains permissible after Booker for a Court
to consider acquitted conduct when sentencing a defendant,
provided that the sentence imposed does not exceed the statu-
tory maximum sentence authorized for crimes for which the
defendant was convicted.” The district court concluded that
“when a district court makes a determination of sentencing
facts by a preponderance test under the now-advisory guide-
lines, it is not bound by jury determinations reached through
application of the more onerous, reasonable doubt standard.”
Thus, it considered the criminal activity charged in the acquit-
ted counts when it sentenced Mercado and Bravo on the
counts for which they were convicted. Those sentences did
not exceed the statutory maximum possible sentences under
the counts of conviction.
2
Actually, this was a resentencing after we remanded for that purpose.
United States v. Mercado, 110 Fed. Appx. 19, 23-24 (9th Cir. 2004).
UNITED STATES v. MERCADO 861
JURISDICTION AND STANDARD OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§ 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742(a). We review claims that a sentence is
unconstitutional de novo. See United States v. Leon H., 365
F.3d 750, 752 (9th Cir. 2004).
DISCUSSION
Mercado and Bravo appeal their sentences and claim that
their constitutional right to a jury trial was violated when the
conduct involved in the crimes for which they were acquitted
was considered by the district court. U.S. Const. amend. VI.
We disagree.
[1] We start, as we must, with United States v. Watts, 519
U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997) (per
curiam). In that case, the Supreme Court considered holdings
by this court “that sentencing courts could not consider con-
duct of the defendants underlying charges of which they had
been acquitted.” Id. at 149, 117 S. Ct. at 634. It rejected that
notion, and after pointing out that “ ‘an acquittal in a criminal
case does not preclude the Government from relitigating an
issue when it is presented in a subsequent action governed by
a lower standard of proof,’ ”3 it went on to “hold 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 evi-
dence.”4 That would seem to be a complete answer to the
issue before us.
But, argue Mercado and Bravo, once Booker5 was decided,
3
Id. at 156, 117 S. Ct. at 637.
4
Id. at 157, 117 S. Ct. at 638.
5
United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d
621 (2005).
862 UNITED STATES v. MERCADO
Watts was necessarily so undermined and limited that it no
longer controls. Thus, they say, our pre-Watts jurisprudence
is renascent and prevents consideration of conduct “underly-
ing charges of which they had been acquitted.” Watts, 519
U.S. at 149, 117 S. Ct. at 634.
[2] We are not convinced. True it is that the Supreme Court
did point out that the Sixth Amendment issue regarding man-
datory Sentencing Guidelines, which it was then considering,
was not presented in Watts because that case actually focused
on the Fifth Amendment’s Double Jeopardy Clause. Booker,
543 U.S. at 240 & n.4, 125 S. Ct. at 754 & n.4. But that did
not strike Watts from the jurisprudential books. While the
Watts holding might have become problematic under a man-
datory guideline system, the Court went on to declare that
even before the Guidelines, federal judges could look to the
“real conduct” of a defendant. Id. at 250, 125 S. Ct. at 759.
And, said the Court:
Congress expected this system to continue. That is
why it specifically inserted into the [Sentencing] Act
the provision cited above, which (recodifying prior
law) says that
“[n]o limitation shall be placed on the
information concerning the background,
character, and conduct of a person con-
victed of an offense which a court of the
United States may receive and consider for
the purpose of imposing an appropriate sen-
tence.” 18 U.S.C. § 3661.
This Court’s earlier opinions assumed that this
system would continue. That is why the Court, for
example, held in United States v. Watts . . . that a
sentencing judge could rely for sentencing purposes
upon a fact that a jury had found unproved (beyond
a reasonable doubt).
UNITED STATES v. MERCADO 863
Id. at 251, 125 S. Ct. at 760. That regime was preserved when
the provisions that made the Guidelines mandatory were
excised. Id. at 245, 125 S. Ct. at 756-57. To put it another
way, the constitutional propriety of a sentencing court’s con-
sideration of conduct which underlay an acquitted charge
existed before creation of the Guidelines and continues to
exist today, despite the possibility that it would not exist if the
Guidelines were mandatory, which they are not.
[3] We are, therefore, satisfied that the core principle of
Watts lives on and that the district court could constitutionally
consider the acquitted conduct. In that we are not alone.
In fact, in a case where a jury “[i]n a special interrogatory
. . . determined that the government had failed to prove [a
crime] beyond a reasonable doubt,” we pointed out that: “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. Lynch, 437
F.3d 902, 915-16 (9th Cir.) (per curiam) (en banc), cert.
denied, ___ U.S. ___, 127 S. Ct. 89 (2006). And in yet
another case, even though there had been an acquittal, we
cited Watts and stated that “neither principles of double jeop-
ardy nor collateral estoppel nor Ameline and Booker would
preclude the district court on resentencing from appropriately
considering factual allegations that [defendant] is responsible
for the use of weapons during the robbery, as well as bodily
injury and physical restraint.” United States v. Johnson, 444
F.3d 1026, 1030 (9th Cir. 2006).
[4] Moreover, every other Court of Appeals to consider the
issue has agreed with the proposition that the use of acquitted
conduct at sentencing does not violate the Constitution. See
United States v. Gobbi, No. 06-1643, slip. op. at 22-23 (1st
Cir. Dec. 28, 2006) (Watts survives Booker); United States v.
Farias, 469 F.3d 393, 399-400 (5th Cir. 2006) (same); United
States v. Hayward, 177 Fed. Appx. 214, 215 (3d Cir.) (same),
cert. denied, ___ U.S. ___, 127 S. Ct. 270 (2006); United
864 UNITED STATES v. MERCADO
States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.) (neither Fifth
nor Sixth Amendment violated), cert. denied, ___ U.S. ___,
127 S. Ct. 691 (2006); United States v. High Elk, 442 F.3d
622, 626 (8th Cir. 2006) (even after Booker acquitted conduct
can be considered); United States v. Vaughn, 430 F.3d 518,
525-27 (2d Cir. 2005) (Watts survives Booker), cert. denied,
___ U.S. ___, 126 S. Ct. 1665, 164 L. Ed. 2d 405 (2006);
United States v. Price, 418 F.3d 771, 787-88 (7th Cir. 2005)
(same); United States v. Ashworth, 139 Fed. Appx. 525, 527
(4th Cir.) (per curiam) (Sixth Amendment not violated), cert.
denied, ___ U.S. ___, 126 S. Ct. 765, 163 L. Ed. 2d 594
(2005); United States v. Magallanez, 408 F.3d 672, 684-85
(10th Cir.) (same), cert. denied, ___ U.S. ___, 126 S. Ct. 468,
163 L. Ed. 2d 356 (2005); United States v. Duncan, 400 F.3d
1297, 1304-05 (11th Cir.) (same), cert. denied, ___ U.S. ___,
126 S. Ct. 432, 163 L. Ed. 2d 329 (2005).
[5] In fine, we join, rather than rain upon, the parade of
authority that finds no Sixth Amendment violation when sen-
tencing judges consider conduct underlying acquitted counts.6
CONCLUSION
[6] We hold that Booker has not abrogated the previously
prevailing constitutional jurisprudence that allowed sentenc-
ing courts to consider conduct underlying acquitted criminal
charges.
AFFIRMED.
6
Mercado and Bravo also assert that their double jeopardy rights were
violated, despite Watts. From what we have already said, it follows, muta-
tis mutandis, that they cannot prevail on that claim.
UNITED STATES v. MERCADO 865
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that dis-
trict courts can rely on acquitted conduct when sentencing
criminal defendants.1 Although the majority holds that United
States v. Watts, 519 U.S. 148 (1997) (per curiam), presents a
“complete answer to the issue before us,” maj. op. at 861, the
Supreme Court has concluded otherwise, as do I. United
States v. Booker, 543 U.S. 220 (2005). In Booker, the Court
explained that Watts addressed only a “very narrow” Fifth
Amendment issue unrelated to the Sixth Amendment question
then before the Court. Id. at 240 & n.4. As the Court empha-
sized, Watts did not consider, let alone decide, whether the
Sixth Amendment was violated by reliance on acquitted con-
duct at sentencing.
Despite this clear limitation of Watts’s holding, the major-
ity here applies Watts to the Sixth Amendment issue before
us, ignoring Booker’s requirement that the jury’s verdict alone
must authorize a defendant’s sentence. Id. at 235. This appli-
cation defies logic. When a jury refuses to convict defendants
of several counts, but the trial court nonetheless relies on that
same acquitted conduct to increase the defendants’ sentences
sevenfold, the jury has not authorized the resulting sentences
in any meaningful sense.
Reliance on acquitted conduct in sentencing diminishes the
jury’s role and dramatically undermines the protections
enshrined in the Sixth Amendment. Both Booker and the clear
import of the Sixth Amendment prohibit such a result.
1
Defendants have also raised a Fifth Amendment challenge to the con-
sideration of acquitted conduct. The majority does not discuss this argu-
ment, but I believe it has been squarely foreclosed by United States v.
Watts, 519 U.S. 148 (1997).
866 UNITED STATES v. MERCADO
I. FACTS
This case stems from the large-scale prosecution of alleged
Mexican Mafia, or “Eme,” members. As part of the prosecu-
tion, defendants Mercado and Bravo were charged with: (1)
violating the Racketeer Influenced and Corrupt Organizations
Act (“RICO”) (18 U.S.C. § 1962(c)) (count one); (2) RICO
conspiracy (18 U.S.C. § 1962(d)) (count two); (3) conspiracy
to distribute narcotics (21 U.S.C. § 846) (count three); (4) five
counts of violent crimes in aid of racketeering (“VICAR”) (18
U.S.C. § 1959(a)), including participation in three murders
(counts five through seven), and two counts of assault with a
deadly weapon (counts eight and nine); (5) conspiracy to
commit murder (count fourteen); and (6) five counts of bran-
dishing and discharging a firearm (18 U.S.C. § 924(c))
(counts twenty-three through twenty-seven). Bravo was
charged additionally with a VICAR count for conspiracy to
murder (18 U.S.C. § 1959(a)(5)) (count fifteen), and a count
of using a firearm during the conspiracy to murder (18 U.S.C.
§ 924(c)) (count twenty-eight). Mercado also was charged
with an additional VICAR count for conspiracy to murder (18
U.S.C. § 1959(a)(5)) (count sixteen).
At trial, the jury returned verdicts of guilty against both
Mercado and Bravo on counts two (RICO conspiracy) and
three (conspiracy to distribute narcotics), but acquitted them
of the more serious, remaining counts. The Presentence
Report (“PSR”) recommended a Guideline sentence of 30-37
months, based on the counts of conviction. However, the dis-
trict court chose to disregard the sentencing recommendation,
believing that Watts required it to consider defendants’ acquit-
ted conduct. At sentencing the court found beyond a reason-
able doubt that defendants had participated in the murders and
conspiracies to murder of which they had been acquitted.
Relying on its own factual determination rather than the
jury’s, the court imposed the maximum sentence allowed by
statute — a 20-year term that constituted a sevenfold increase
over the sentence recommended in the PSR.
UNITED STATES v. MERCADO 867
Defendants appealed their convictions and sentences, rais-
ing the acquitted conduct issue, among others. We affirmed
defendants’ convictions in an unpublished opinion but
remanded their cases to the district court for re-sentencing.
United States v. Mercado, 110 Fed. Appx. 19 (9th Cir. 2004).
We did not decide the acquitted conduct issue, believing that
the Supreme Court’s pending decisions in Booker and Fanfan2
might provide guidance to the district court. See id. at 24
(remanding with instructions to resentence defendants and
“conduct any other appropriate proceedings in accord with
those Supreme Court decisions”).
Following the Supreme Court’s decision in Booker, the dis-
trict court resentenced both defendants. Mercado was resen-
tenced on August 1, 2005, Bravo on October 24, 2005. After
reviewing Booker’s holding, the district court affirmed its ear-
lier decision to consider acquitted conduct, and found beyond
a reasonable doubt that defendants had committed the acts of
which they were acquitted at trial. Guided by this finding, the
court resentenced each defendant to a 20 year term.
II. DISCUSSION
Animating Apprendi v. New Jersey, 530 U.S. 466 (2000),
and its progeny is a palpable concern for the erosion of the
right to jury trial fueled by changes in the sentencing system.
Over the last few decades, new developments have threatened
the jury’s historical province, diminishing the role of the jury
and ceding it to the trial judge. See Booker, 543 U.S. at 236-
37. Increased legislative regulation of sentencing created a
new sentencing regime in which legislatures selected certain
facts that, if found, would lead to heavier sentences or
increased sentencing ranges. Id. at 236. These facts were often
found by the judge — not the jury — as part of the sentencing
process, thus diminishing the importance of the jury verdict
2
The Court granted certiorari in United States v. Fanfan, 542 U.S. 946
(2004), and decided it as part of the Court’s opinion in Booker.
868 UNITED STATES v. MERCADO
as the predicate for the sentence. “It became the judge, not the
jury, who determined the upper limits of sentencing, and the
facts determined were not required to be raised before trial or
proved by more than a preponderance.” Id. As judge-found
sentencing enhancements increased, the importance of the
jury verdict diminished, reducing the jury’s decision, in some
cases, “to the relevant importance of low-level gatekeeping.”
Jones, 526 U.S. at 244.
Troubled by this development, the Supreme Court sought
to “preserv[e this] ancient guarantee under a new set of cir-
cumstances” — an effort motivated not “by Sixth Amendment
formalism, but by the need to preserve Sixth Amendment sub-
stance.” Booker, 543 U.S. at 237. Specifically, the Court took
steps to “guarantee[ ] that the jury would still stand between
the individual and the power of the government under the new
sentencing regime.”3 Id. Towards this end the Court issued a
series of rulings, beginning with Jones v. United States, 526
U.S. 227 (1999), in which it identified the substantive core of
the right to jury trial and defended that core against judicial
and legislative infringement. These rulings eschewed formal
analysis, focusing on the substantive question of whether a
particular practice or entity undermined the jury’s ability to
interpose itself between the government and the accused.
As the Court recognized, the jury could not insulate defen-
dants from government overreaching unless empowered to
3
This interposition was necessary to protect against the overreaching of
the central government and its various officials, including prosecutors and
judges, under the rubric of fighting crime. See Apprendi, 530 U.S. at 477
(describing trial by jury as necessary “to guard against a spirit of oppres-
sion and tyranny on the part of rulers” and “as the great bulwark of [our]
civil and political liberties”) (quoting 2 J. Story, Commentaries on the
Constitution of the United States 540-41 (4th ed. 1873)); Akhil Amar, The
Bill of Rights 84 (1998) (noting that “the jury played a leading role in pro-
tecting ordinary individuals against government overreaching” and that
“the jury could thwart overreaching by powerful and ambitious prosecu-
tors and judges”).
UNITED STATES v. MERCADO 869
find all of the facts relevant to sentencing and to thereby con-
trol, within limits, the resulting punishment. Absent these pro-
tections, the government and its officials could circumvent the
jury, presenting alleged key facts directly to the judge, thus
attenuating the connection between verdict and punishment.4
Accordingly, the Court’s recent Sixth Amendment decisions
prohibit the imposition of any sentence based on the judge’s
finding of an essential fact — i.e. any sentence not authorized
by the jury verdict.5 Booker, 543 U.S. at 235.
It is in this context that we must decide whether the jury
has authorized a 20-year sentence for defendants, despite its
refusal to convict them of the very conduct that the district
court relied upon to increase their sentences from 30-37
months to 240 months. I conclude that the consideration of
acquitted conduct violates the Sixth Amendment. Because
neither the majority nor the court of appeals decisions upon
which it relies addresses the issue of jury authorization, I find
neither persuasive.
A. Related Authority
Whether, post-Booker, a judge may rely on acquitted con-
duct at sentencing without violating the Sixth Amendment is
4
As Jones recognized, “[i]f a potential penalty might rise from 15 years
to life on a nonjury determination, the jury’s role would correspondingly
shrink from the significance usually carried by determinations of guilt to
the relative importance of low-level gatekeeping: in some cases, a jury
finding of fact necessary for a maximum 15-year sentence would merely
open the door to a judicial finding sufficient for life imprisonment.” 526
U.S. at 243-44.
5
For instance, the recent sentencing decisions have forbidden judicial
determinations of “harm to the victim,” which trigger an increased sen-
tencing maximum, Jones, 526 U.S. at 232; judicial “sentencing factor”
findings that raise the statutory maximum, Apprendi, 530 U.S. at 478, 494;
judicial determination of “aggravating factors” necessary to impose the
death penalty, Ring v. New Jersey, 536 U.S. 584, 588-89 (2002); and
Guidelines findings that increase the applicable Guidelines range, Booker.
543 U.S. at 235.
870 UNITED STATES v. MERCADO
an issue of first impression in this Circuit. The majority
ignores Booker in claiming that the Supreme Court has pro-
vided a “complete answer” to this issue in United States v.
Watts. In Booker, the Court took pains explicitly to limit and
distinguish Watts, explaining that Watts answered a very dif-
ferent question than that presented in Booker. As Justice Ste-
vens clarified,
In Watts . . . we held that the Double Jeopardy
Clause permitted a court to consider acquitted con-
duct in sentencing a defendant under the Guidelines.
In neither Witte nor Watts was there any contention
that the sentencing enhancement had exceeded the
sentence authorized by the jury verdict in violation
of the Sixth Amendment. The issue we confront
today was simply not presented.
543 U.S. at 240. Stevens further elaborated that “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. at 240 n.4.
In short, Watts has been “explicitly disavowed by the
Supreme Court as a matter of Sixth Amendment law [and] has
no bearing on this case in light of the Court’s more recent and
relevant rulings.” United States v. Faust, 456 F.3d 1342, 1349
(11th Cir. 2006) (Barkett, J., dissenting). The majority’s reli-
ance on Watts as dispositive of Sixth Amendment issues is mis-
placed.6 Watts neither considered nor decided the issue
currently before us.
6
To the extent the majority argues that all relevant conduct can be con-
sidered by the district court, as it was before Watts or Booker, I agree that
district courts have considerable latitude to review conduct outside of the
offense of conviction. However, the effect of Apprendi and its progeny is
to exclude acquitted conduct from this set of permissible considerations
because it is not authorized by the jury verdict.
UNITED STATES v. MERCADO 871
Nor has the Ninth Circuit addressed the Sixth Amendment
issue we face. The government cites only other Circuits’ opin-
ions for this proposition, but does cite two Ninth Circuit deci-
sions — United States v. Johnson, 444 F.3d 1026, 1030 (9th
Cir. 2006), and United States v. Lynch, 437 F.3d 902, 916 (9th
Cir. 2006) (en banc) (per curiam) — in its briefing. However,
neither of these opinions discusses Watts in the context of the
Sixth Amendment issue before us. Rather, the two cases dis-
cuss Watts only in passing, noting that Watts remains good
law — a fact acknowledged by Booker itself. These fleeting
references may serve to re-confirm Watts’s Fifth Amendment
holding, but do not extend Watts to the Sixth Amendment
context.
The opinions from other Circuits cited by the majority
assume that no Sixth Amendment problem exists as long as
the sentencing court stays beneath the statutory maximum.
Clearly not so. The appropriate inquiry is whether a sentence
has been authorized by the jury, not whether a sentence is
below the statutory limit. I also note that “the ‘statutory maxi-
mum’ 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.” Blakely, 542
U.S. at 303. While sentences that exceed the statutory maxi-
mum lack the necessary jury authorization, so too do sen-
tences that rely on conduct for which the jury has explicitly
withheld authorization. In both cases, the judge’s sentence
relies on a factual finding not made by the jury, exposing the
defendant to a penalty exceeding the maximum to which he
would have otherwise been subject. See Ring, 536 U.S. at 602
(“A defendant may not be expose[d] . . . to a penalty exceed-
ing the maximum he would receive if punished according to
the facts reflected in the jury verdict alone.”) (quotations and
citations omitted). By failing to consider the substantive
impact that the consideration of acquitted conduct has on the
right to jury trial, each of these decisions ignores the impact
of Jones, Apprendi, Ring, Blakely, and Booker. Thus, I am not
content, as the majority is, to join this “parade of authority.”
872 UNITED STATES v. MERCADO
B. A Substantive Look at the Use of
Acquitted Conduct
The Supreme Court’s goal in the Apprendi line of cases
was not to exalt the “abstract dignity of the statutory maxi-
mum,” Faust, 456 F.3d at 1350, but to preserve the “great
bulwark of [our] civil and political liberties,” Apprendi, 530
U.S. at 477, “under a new set of circumstances.” Booker, 543
U.S. at 237. The Court’s Sixth Amendment analytical
approach was “one not of form, but of effect,” Ring, 536 U.S.
at 604 (quoting Apprendi, 530 U.S. at 494), and “reflects not
just respect for longstanding precedent, but the need to give
intelligible content to the right of jury trial.” Blakely, 542 U.S.
at 305.
Consequently, any Sixth Amendment sentencing analysis,
post-Booker (post-Apprendi, really), must focus on the sub-
stantive goal of ensuring the jury trial right’s continued vital-
ity in a new legal context. This requirement was made
abundantly clear in Booker, when the government attempted
to distinguish Booker and Apprendi on formal grounds. The
government argued that Apprendi was not controlling because
its holding addressed only statutory maxima and not Guide-
lines ranges. In response, the Court declared, “[m]ore impor-
tant than the language used in our holding in Apprendi are the
principles we sought to vindicate. Those principles are
unquestionably applicable to the Guidelines.” Booker, 543
U.S. at 238. The principles cited by the Court included the
Framers’ fear of “judicial despotism” and “arbitrary punish-
ments upon arbitrary convictions” — fears guarded against by
the judgment of a defendant’s peers. Id. at 238-39 (requiring
that “the truth of every accusation . . . should afterwards be
confirmed by the unanimous suffrage of twelve of [the defen-
dant’s] equals and neighbors.”).
These principles apply with even greater force to the con-
sideration of acquitted conduct at sentencing. By considering
acquitted conduct, a judge thwarts the express will of the jury
UNITED STATES v. MERCADO 873
— as opposed to the implicit or imputed will of the legislature
that is thwarted by a sentence above the statutory maximum
— and imposes a punishment based on conduct for which the
government tried, but failed, to get a conviction. Such a sen-
tence has little relation to the actual conviction, and is based
on an accusation that failed to receive confirmation from the
defendant’s equals and neighbors.
In order to guarantee that the jury remains capable of pro-
tecting the accused against judge, prosecutor, and the central
government, the Court now insists that “the judge’s authority
to sentence [must] derive[ ] wholly from the jury’s verdict.
Without that restriction, the jury would not exercise the con-
trol that the Framers intended.” Blakely, 542 U.S. at 306
(emphasis added); see also Booker, 543 U.S. at 235 (finding
it unacceptable when “the jury’s verdict alone does not autho-
rize the sentence.”); Ring, 536 U.S. at 602 (holding Arizona
death penalty statute unconstitutional because it exposed
defendant to a greater punishment than that authorized by the
jury verdict); Apprendi, 530 U.S. at 494 (explaining that the
relevant inquiry is whether “the required finding expose[s] the
defendant to a greater punishment than that authorized by the
jury’s guilty verdict”).
The jury’s powers in criminal cases are confined to issuing
verdicts. As such, any authorization or withholding of authori-
zation must be communicated through the jury’s verdict, and
the jury’s ability to insulate defendants from the government
— as the Constitution requires — is entirely dependent upon
the integrity of its verdict. As the connection between verdict
and punishment erodes, the significance of the jury’s verdict
is correspondingly diminished. Such attenuation makes it
increasingly unlikely that the jury verdict has authorized the
ensuing punishment. Just because the jury has authorized a
punishment does not mean that the jury has authorized any
punishment.
874 UNITED STATES v. MERCADO
If the jury does not substantively authorize the defendant’s
sentence, it cannot ensure the people’s “control in the judicia-
ry,” as required by the Sixth Amendment. Blakely, 542 U.S.
at 306. Its role can be slowly whittled away by the same ero-
sion that both the Framers and Blackstone7 warned against,
see Jones, 526 U.S. at 247-48 (citing the fear of Blackstone
and the Framers “that the jury right could be lost not only by
gross denial, but by erosion”); Apprendi, 530 U.S. at 483
(same), reducing juries to the low-level gatekeeping function
described in Jones, 526 U.S. at 246, and leaving defendants
at the mercy of judge and prosecutor — the very same entities
against whom the jury was supposed to protect the defendant.8
As the court explained in United States v. Pimental, 367 F.
Supp. 2d 143 (D. Mass. 2005), “[i]t makes absolutely no
sense to conclude that the Sixth Amendment is violated when-
ever facts essential to sentencing have been determined by a
judge rather than a jury, and also conclude that the fruits of
the jury’s efforts can be ignored with impunity by the judge
in sentencing.” Id. at 150. See also United States v. Coleman,
370 F. Supp. 2d 661, 670 (S.D. Ohio 2005) (“Apprendi and
7
Blackstone
identif[ied] trial by jury as “the grand bulwark” of English liber-
ties . . . [and] contended that other liberties would remain secure
only “so long as this palladium remains sacred and inviolate, not
only from all open attacks, (which none will be so hardy as to
make) but also from all secret machinations, which may sap and
undermine it; by introducing new and arbitrary methods of trial,
by justices of the peace, commissioners of the revenue, and
courts of conscience. And however convenient these may appear
at first, (as doubtless all arbitrary powers, well executed, are the
most convenient), yet let it be again remembered, that delays, and
little inconveniences in the forms of justice, are the price that all
free nations must pay for their liberty in more substantial matters.
Jones, 526 U.S. at 246 (quoting 4 W. Blackstone, Commentaries on the
Laws of England 342-44 (1769)).
8
This is not a complete list. Juries were also intended to protect defen-
dants against the entire range of government figures.
UNITED STATES v. MERCADO 875
its progeny, including Booker, have elevated the role of the
jury verdict by circumscribing a defendant’s sentence to the
relevant statutory maximum authorized by a jury; yet, the
jury’s verdict is not heeded when it specifically withholds
authorization. Stated differently, the jury is essentially
ignored when it disagrees with the prosecution.”)
Pimental states the point well. The fact that a jury has not
authorized a particular punishment is never more clear than
when the jury is asked for, yet specifically withholds, that
authorization. In many ways, the consideration of acquitted
conduct is a more direct repudiation of the jury verdict than
is a sentence that exceeds the statutory maximum. In the case
of acquitted conduct, the jury has been given the opportunity
to authorize punishment and specifically withheld it. When a
judge imposes a sentence above the statutory maximum, the
jury has never specifically denied authority; it has simply
never been asked. By allowing judges to consider conduct
rejected by the jury, the court allows the jury’s role to be cir-
cumvented by the prosecutor and usurped by the judge — two
of the primary entities against whom the jury is supposed to
protect the defendant. See Duncan v. Louisiana, 391 U.S. 145,
156 (1968) (“Providing an accused with the right to be tried
by a jury of his peers gave him an inestimable safeguard
against the corrupt or overzealous prosecutor and against the
compliant, biased or eccentric judge.”). The jury simply can-
not protect a defendant against the overzealous prosecutor or
the compliant, biased, or eccentric judge, if those same indi-
viduals have the authority to ignore the jury’s verdict. To reit-
erate, the consideration of acquitted conduct severs the
connection between verdict and sentence.
Blakely noted that “[t]he Framers would not have thought
it too much to demand that, before depriving a man of [ten]
more years of his liberty, the State should have to suffer the
modest inconvenience of submitting its accusations to ‘the
unanimous suffrage of twelve of his equals and neighbors,’
rather than a lone employee of the State.” 542 U.S. at 313-14.
876 UNITED STATES v. MERCADO
Here, appellants have each been deprived of an additional sev-
enteen years of their liberty — a sevenfold increase over their
original Guideline calculated sentences. As in Blakely, I sus-
pect the Framers would not have thought it too much to
demand that the State suffer the modest inconvenience of
proving appellants’ guilt to twelve of their equals and neigh-
bors before increasing their sentences sevenfold. Nor is it too
much to require the state to suffer the consequences of its fail-
ure to prove guilt.
Apprendi made clear that “the relevant inquiry is one not of
form, but of effect — does the required finding expose the
defendant to a greater punishment than that authorized by the
jury’s guilty verdict?” Apprendi, 530 U.S. at 494. In this case,
the government sought authorization to punish defendants for
a number of crimes. The jury authorized punishment for two
counts, but withheld authorization for each of the more seri-
ous offenses. As a result, the PSR recommended a sentence
in the 30-37 month range. The district court added an addi-
tional 203-210 months solely on the basis of its finding that
defendants had committed the conduct of which the jury
acquitted them.
Had the district court not rejected the jury’s finding, defen-
dants would have received a dramatically reduced sentence —
a fact disputed by nobody in this case. To hold that any sen-
tence beneath the statutory maximum is acceptable is not
enough: Apprendi requires examination “not of form, but of
effect.” Id. And here the effect was to expose defendants to
a dramatic increase in punishment based upon conduct for
which the jury refused to authorize punishment in the only
way it could — by acquitting defendants of the most serious
conduct with which they were charged. Neither Jones, nor
Apprendi, nor Ring, nor Blakely, nor Booker countenance this
result.
I would vacate defendants’ sentences on Sixth Amendment
grounds and remand to the district court for re-sentencing.