Just when you thought it was safe to go on vacation

It seems that the summer doldrums have hit. The courts are winding down and taking summer recesses. People are on vacation or thinking about vacation. However, a major 6th Amendment issue continues to percolate beneath the surface. The Eighth Circuit issued a decision on Friday containing a concurrence advocating a position which will be front and center until the Supreme Court steps in and puts the issue to rest. In U.S. v. Papakee, case # 08-2032, Judge Bright wrote separately to advocate that the use of acquitted conduct to enhance a sentence is unconstitutional. The authorization for the use of acquitted conduct under the Federal Sentencing Guidelines dates back to the Supreme Court's decision in United States v. Watts. Bright made the following observation in a footnote:

FN3 And in United States v. Booker, 543 U.S. 220, 240 (2005), the Supreme Court correctly characterized United States v. Watts, 519 U.S. 148, 157 (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.

The term "the myth of Watts" has an appealing ring to it. This issue has gotten an injection of hope with Justice Scalia's concurrence in Gall v. United States. He wrote: "The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory guideline range would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury."

The bottom line for federal court practioners is that they must be very careful during plea allocutions and sentencing arguments. If the Supreme Court moves the boat a little to adopt this argument you don't want to be left overboard.