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![handle is hein.congcourts/gsenupa0009 and id is 1 raw text is:
Guideline Sentencing Update,
a publication of the Federal Judicial Center * available via Internet at http://www.fjc.gov e vol. 9, no. 1, Madr.~ .Q997
General Application Principles
Sentencing Factors
Supreme Court holds that conduct from acquitted
counts may be used in guideline calculation. In these
two cases, two panels of the Court ofAppeals for the Ninth
Circuit held that sentencing courts could not consider
conduct of the defendants underlying charges of which
they had been acquitted.... Every other Court of Appeals
has held that a sentencing court may do so, if the Govern-
ment establishes that conduct by a preponderance of the
evidence.... Because the panels' holdings conflict with
the clear implications of 18 U.S.C. § 3661, the Sentencing
Guidelines, and this Court's decisions, particularly Witte
v. United States,_ ..115 S. Ct. 2199... (1995), we grant the
petition and reverse in both cases.
We begin our analysis with 18 U.S.C. § 3661, which
codifies the longstanding principle that sentencing
courts have broad discretion to consider various kinds of
information .... We reiterated this principle in Williams v.
New York, 337 U.S. 241 ... (1949), in which a defendant
convicted of murder and sentenced to death challenged
the sentencing court's reliance on information that the
defendant had been involved in 30 burglaries of which he
had not been convicted .... Neither the broad language of
§ 3661 nor our holding in Williams suggests any basis for
the courts to invent a blanket prohibition against consid-
ering certain types of evidence at sentencing. Indeed,
under the pre-Guidelines sentencing regime, it was 'well
established that a sentencing judge may take into ac-
count facts introduced at trial relating to other charges,
even ones of which the defendant has been acquitted.'
The Guidelines did not alter this aspect of the sen-
tencing court's discretion. Section 1B 1.4 allows sentenc-
ing courts to consider, without limitation, any informa-
tion concerning the background, character and conduct
of the defendant, unless otherwise prohibited by law,
and for certain offenses... USSG § lB 1.3 (a) (2) requires
the sentencing court to consider 'all acts and omissions
... that were part of the same course of conduct or
common scheme or plan as the offense of conviction.'
Application Note 3 explains that '[a]pplication of this
provision does not require the defendant, in fact, to
have been convicted of multiple counts.'... In short, we
are convinced that a sentencing court may consider
conduct of which a defendant has been acquitted.
The Court of Appeals' position to the contrary not
only conflicts with the implications of the Guidelines, but
it also seems to be based on erroneous views of our
double jeopardy jurisprudence.... In Witte, we held that
a sentencing court could, consistent with the Double
Jeopardy Clause, consider uncharged cocaine importa-
tion in imposing a sentence on marijuana charges that
was within the statutory range, without precluding the
defendant's subsequent prosecution for the cocaine of-
fense. We concluded that 'consideration of information
about the defendant's character and conduct at sentenc-
ing does not result in punishment for any offense other
than the one of which the defendant was convicted.' ...
115 S. Ct. at 2207. Rather, the defendant is 'punished only
for the fact that the present offense was carried out in a
manner that warrants increased punishment.'
The Court of Appeals likewise misunderstood the
preclusive effect of an acquittal, when it asserted that a
jury 'rejects' some facts when it returns a general verdict
of not guilty.... We have explained that 'acquittal on
criminal charges does not prove that the defendant is
innocent; it merely proves the existence of a reasonable
doubt as to his guilt.'... [T]he jury cannot be said to have
'necessarily rejected' any facts when it returns a general
verdict of not guilty.
We acknowledge a divergence of opinion among the
Circuits as to whether, in extreme circumstances, rel-
evant conduct that would dramatically increase the sen-
tence must be based on clear and convincing evidence.
The cases before us today do not present such excep-
tional circumstances, and we therefore do not address
that issue. We therefore hold that a jury's verdict of ac-
quittal does not prevent the sentencing court from con-
sidering conduct underlying the acquitted charge, so
long as that conduct has been proved by a preponder-
ance of the evidence.
U.S. v. Watts, 117 S. Ct. 633,635-38 (1997) (per curiam)
(Stevens and Kennedy, JJ., dissenting).
See Outline at I.A.3
Violation of Supervised Release
Revocation
In Eighth Circuit, after revocation court may reim-
pose supervised release under § 3583(h) for defendant
originally sentenced before statute's effective date.
Defendant was first sentenced in 1990. He began serving
his term of supervised release in May 1995, had it revoked
Guideline Sentencing Update is distributed periodically to inform judges and other judicial branch personnel of selected federal court decisions
on the sentencing reform legislation of 1984 and 1987 and the Sentencing Guidelines. Update refers to the Sentencing Guidelines and policy
statements of the U.S. Sentencing Commission, but is not intended to report Commission policies or activities. Update should not be consid-
ered a recommendation or official policy of the Center; any views expressed are those of the author.](ViewImageLocal?handle=hein.congcourts/gsenupa0009&div=1&collection=&method=preview&ext=.png&size=3)