USA v. MERCADO
The Ninth Circuit Court of Appeals today released an opinion in USA v. MERCADO, No. 05-50624, a criminal appeal. The panel consisted of Betty B. Fletcher, Ferdinand F. Fernandez, and Susan P. Graber, Circuit Judges.
FERNANDEZ, Circuit Judge:
Robert Mercado, Jr., and Daniel Bravo appeal their sentences for conspiracy to violate RICO, 18 U.S.C. § 1962(d), and for conspiracy to aid and abet narcotics trafficking. 21 U.S.C. § 846. They assert that in calculating their sentences under the United States Sentencing Guidelines, the district court erred when it considered criminal activity which had . . .
B. FLETCHER, Circuit Judge, dissenting:
I respectfully dissent from the majority’s holding that district courts can rely on acquitted conduct when sentencing criminal defendants. Although the majority holds that United States v. Watts, 519 U.S. 148 (1997) (per curiam), presents a “complete answer to the issue before us,” maj. op. at 861, the Supreme Court has concluded otherwise, as do I. United States v. Booker, 543 U.S. 220 (2005). In Booker, the Court explained that Watts addressed only a “very narrow” Fifth Amendment issue unrelated to the Sixth Amendment question then before the Court. Id. at 240 & n.4. As the Court emphasized, Watts did not consider, let alone decide, whether the Sixth Amendment was violated by reliance on acquitted conduct at sentencing. Despite this clear limitation of Watts’s holding, the majority here applies Watts to the Sixth Amendment issue before us, ignoring Booker’s requirement that the jury’s verdict alone must authorize a defendant’s sentence. Id. at 235. This application defies logic. When a jury refuses to convict defendants of several counts, but the trial court nonetheless relies on that same acquitted conduct to increase the defendants’ sentences sevenfold, the jury has not authorized the resulting sentences in any meaningful sense. Reliance on acquitted conduct in sentencing diminishes the jury’s role and dramatically undermines the protections enshrined in the Sixth Amendment. Both Booker and the clear import of the Sixth Amendment prohibit such a result. . . .