Attacking the Use of Acquitted Conduct at Sentencing
Federal defendants face a cruel dilemma. They can insist on a trial, but if the jury acquits them of some, but not all of the charges, the government can still argue at sentencing that the district court should use the acquitted conduct, if proven by a preponderance of the evidence. The aquittal has little, if any, practical significance.
Thus far, the Supreme Court has upheld this remarkable result. See Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsberg, JJ., dissenting from the denial of certiori). So has the Sixth Circuit Court of Appeals. United States v. White, 551 U.S. 381 (6th Cir. 2008).
But there is another way. The district court is permitted, but not required to use acquitted conduct at sentencing. The conduct increases a defendant's suggested sentence under the Federal Sentencing Guidelines, but the Guidelines are advisory. The district court can calculate the advisory sentence range using the conduct and then vary downward so that the sentence is not based on acquitted or uncharged conduct. This approach vindicates the "right to a speedy and independent trial, by an impartial jury" found in the Sixth Amendment which exists to "prevent oppression by the Government. Duncan v. Louisiana, 391 U.S. 145, 155 (1968). It prevents the Government from depriving a citizen of liberty on the basis of proof that would suffice in a civil case. In re Winship, 397 U.S. 358, 364 (1970).
These arguments may carry the day in the right case. For a more in depth discussion, see United States v. Bell, No. 08-3037, (D.C. Cir. December 22, 2015) (Kavanaugh and Millett, JJ., statements concurring in the denial of the petition for rehearing en banc).