United States v. Papakee , 573 F.3d 569 ( 2009 )

BEIGHT, Circuit Judge,

concurring.

I join the majority’s ultimate conclusion in these appeals, but write separately to voice my opposition to the use of acquitted conduct in determining Blackcloud’s sentence.

I concur, rather than dissent, because I am bound by prior decisions of this circuit that expressly permit a district court to use acquitted conduct at sentencing. See, e.g., United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir.2007) (“Acquitted conduct may be used for sentencing purposes if proved by a preponderance of the evidence.”). But I am aware of no post-Booker authority from the Supreme Court that authorizes the use of acquitted conduct.³

Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See United States v. Canania, 532 F.3d 764, 776 (8th Cir.2008) (Bright, J., concurring) (noting the Supreme Court’s affirmation of the centrality of the jury in the criminal-justice system and that “[a] judge violates a defendant’s Sixth Amendment rights by making findings of fact that either ignore or countermand those made by the jury”). I also believe that use of acquitted conduct to enhance a sentence violates the Due Process Clause of the Fifth Amendment. See id. at 777 (Bright, J., concurring) (“[T]he consideration of ‘acquitted conduct’ undermines the notice requirement that is at the heart of any criminal proceeding.”).

I will not repeat here my concurrence in Canania. But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.

3 . And in United States v. Booker, 543 U.S. 220, 240, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) as holding only that "the [Fifth Amendment's] Double Jeopardy Clause permitted a court to consider acquitted conduct in sentencing a defendant under the Guidelines.” But our court has interpreted Watts’s narrow holding as applying to the use of acquitted conduct more broadly. See, e.g., United States v. Whatley, 133 F.3d 601, 606 (8th Cir. 1998). It is clear to me that the myth of Watts has outgrown its actual holding. Stated plainly, Watts does not immunize the use of acquitted conduct from a challenge under the Sixth Amendment or the Due Process Clause of the Fifth Amendment.