Friday, October 05, 2007

Now is the Time to Challenge Acquitted Conduct

Today in US v. White, No. 05-6596, a Sixth Circuit panel (Merritt, Daughtrey and Griffin) reluctantly upheld a sentence which included a 14 year enhancement based on conduct for which the jury had acquitted the defendant. Despite upholding the sentence, all three judges expressly agreed that such use of acquitted conduct is an issue that needs to be considered via en banc review. So if this comes up in any of your cases, be sure to raise it at sentencing and on appeal.