*Later in the day on March 18, 2013, the Supreme Court denied the petition for cert in Stroud. This is an issue that needs to be addressed as long as the Sentencing Guidelines continue to have a role in sentencing. *
Things have just been crazy and I have not had the opportunity to comment or write. A trial in October 2012, and continued fighting with the State of Wisconsin for a new trial in State v. Awe, coupled with teaching at the law school this semester has made spare time extremely rare.
Anyhow, the Supremes are revisiting the use of acquitted conduct in enhancing a defendant's federal sentence. In Stroud v. United States, No. 12-6877, a case from the 8th Circuit, the U.S. Supreme Court will soon decide whether to review the constitutionality of a sentencing court's use of acquitted conduct in federal sentencing. Stroud is asking the Court to review United States v. Watts, 519 U.S. 148, 157 (1997), which held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."
According to Stroud's petition, the issues presented in the case are as follows:
1. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate petitioner’s right to trial by jury of the Sixth Amendment to the Constitution?
2. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate the due process clause notice requirement of the Fifth Amendment to the Constitution?The case was originally scheduled for the Court's conference of November 20, 2012. But the Court requested that the Government file a response to Stroud's petition (which the Government filed on February 6, 2013). The Court's request for a response might be a sign that the Court is interested in reconsidering the decision in Watts.