An Appeal to Remember

In US v. Darnell Young, Case Number 08-4117, the Fourth Circuit will be grappling with the following sentencing issue, an issue which it does not appear to have addressed previously:

Whether the District Court can find facts by a preponderance of the evidence to increase a defendant’s sentence when the jury has found contrary facts beyond a reasonable doubt. 

 

In other words, if a jury has specifically found that the defendant possessed with the intent to distribute less than five kilograms of cocaine, as it did in Young, can a sentencing judge find that he possessed five kilograms or more of cocaine?  While not a white collar case, the issue certainly has ramifications in the white collar arena in the context of, say, financial loss amounts.

 

In Young, (and in the interest of full disclosure, I was one of the federal prosecutors who tried the case and handled the sentencing), the United States proffered evidence that would have established as “relevant conduct” that the amount of cocaine involved in the conspiracy and substantive counts was between 90 and 100 kilograms of cocaine.   The district judge accepted this proffer (in large part to allow for the appellate issue to be preserved), to which the defendant did not object, and made a specific finding that the Government would have, in fact, produced testimony that would have established that the amount of cocaine involved was between 90 and 100 kilograms of cocaine.    Based on the evidence that would have been produced by the Government, the Government argued that the base offense level should start at 40 for that amount of cocaine.  

 

The district judge, however, believed that he was constrained by the jury’s verdict to find that the amount of drugs involved, for purposes of calculating an advisory guidelines range, was 4.9 kilograms, instead of the 90 to 100 kilograms of cocaine proffered by the Government.  Because of that, the district judge found that the advisory guidelines started at a base offense level of 30 to account for 4.9 kilograms of cocaine, to which the defendant agreed.     

 

Although the Fourth Circuit has not addressed this precise issue, three other circuits have addressed the issue, all deciding in favor of the Government’s position.  Additionally, as is expected to be argued by the Government, an acquittal does not prevent a judge from allowing into evidence certain conduct underlying the acquitted charge, so neither should the jury’s verdict in this case control the judge’s finding at sentencing, the argument goes.  While it may not be a surprising outcome should the United States prevail in the Young case, we should still be asking whether it should prevail.  In other words, should the law permit a judge to overrule the findings of a jury in the same case?

 

As always, your comments are welcome.

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