Yes, answered the D.C. Circuit on Friday, following long-settled sentencing principles. While my friend Prof. Doug Berman disagrees, I think the Circuit got it right.
Ball appealed to the D.C. Circuit, which affirmed the lengthy sentence. The Circuit explained:
Although we understand why [Ball] find[s] sentencing based on acquitted conduct unfair, binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime. See United States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008) (citing United States v. Watts, 519 U.S. 148, 156-57 (1997) (per curiam)); Dorcely, 454 F.3d at 371 (“[A] sentencing court may base a sentence on acquitted conduct without offending the defendant’s Sixth Amendment right to trial by jury.”). This is true even when consideration of the acquitted conduct multiplies a defendant’s sentence severalfold. See Dorcely, 454 F.3d at 370-71. [Ball], in effect, ask us to reconsider Settles and Dorcely. But not only do those decisions bind us, see LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (en banc), no subsequent decision by the Supreme Court or another circuit calls their validity into question.
Over at his Sentencing Law and Policy Blog, Berman raises questions about this ruling. Berman suggests that two 2013 Supreme Court decisions — Peugh and “especially” Alleyne — “provide a reasonable basis to question the continued validity of severe acquitted conduct guideline enhancements. A fair reading of Alleyne suggests that judicial fact-finding as to facts which ‘alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment’ can be constitutional problematic even if these facts do not raise the applicable statutory maximum sentence.” Berman goes on to argue that he does not believe that these rulings “require reversal of old circuit precedents upholding major acquitted conduct enhancements. But I do strongly believe that . . . Peugh and/or Alleyne raise significant new questions about old circuit precedents upholding major acquitted conduct enhancements. Consequently, I find this cursory treatment of what strikes me as a significant sentencing issue in a significant case to be disconcerting.”
Berman is a big fan of expanding procedural protections for defendants at sentencing. But I think he is over-reading Peugh and Alleyne. Those cases both involved facts where the Supreme Court found an increase in punishment in violation of specific constitutional protection. Peugh invalidated ex post facto application of a harsher sentencing guideline to a criminal defendant. And Alleyne held that before a mandatory minimum sentence could be applied to a defendant, the defendant was entitled to have a jury consider the elements underlying that mandatory minimum. In contrast, Ball can have no complaint here about the 19-year sentence that he received for distributing crack. So far as I can tell, there is no claim that this sentence was outside the statutory maximum for drug distribution. Once Ball chose to commit the crime of illegally distributing crack cocaine, he exposed himself to the possibility of a 19-year prison sentence if the sentencing judge thought that was appropriate.
Roberts simply found that such a long sentence was appropriate. As the D.C. Circuit’s citations to precedent indicate, fact-finding at sentencing has long been under a preponderance of the evidence standard. Once the jury has found — beyond a reasonable doubt — that a defendant is a criminal, then a judge determines the sentence under normal burdens of proof. There is no inconsistency between Roberts’s conclusion that there was “clear evidence” (i.e., let’s say 80 percent proof) that Ball ran a violent drug conspiracy and the jury’s conclusion that there was not proof beyond a reasonable doubt (i.e., let’s say 99.9 percent proof) of that fact.
Ball’s real complaint seems to be that the sentencing judge went far outside the sentencing guidelines. But the Supreme Court resolved that issue in Booker, when it rendered the sentencing guidelines “advisory.” Much to the satisfaction of Berman and many defense advocates, the court allowed district judges to vary from prescribed sentencing guidelines based on their instinct about what the proper punishment should be — even where that instinct was at odds with the sentencing guidelines. In the vast majority of cases today, judges vary downward from the sentencing guidelines, often on the basis of facts that defense attorneys prove by a preponderance of the evidence.
For those who complain about judges sentencing based on acquitted conduct, I would like to know exactly what sorts of alternative procedures they would propose. In Ball’s case, the sentencing judge presided over a very lengthy jury, at which the government introduced all relevant evidence about Ball’s involvement in a dangerous drug ring — evidence which the defense was given ample opportunity to challenge. While the jury ultimately had a reasonable doubt about his involvement, Roberts was perfectly positioned to move to the sentencing phase of the process with full information about Ball’s culpability — numerous trial witnesses, subject cross-examination and a defense opportunity to present competing witnesses.
Based on the trial testimony, Roberts made very detailed findings to support Ball’s lengthy sentence. As recounted in the government’s brief, Roberts explained that Ball was a leader of the drug conspiracy, including conspirator testimony that “‘What he [Ball] says goes’”; that Ball had “a lot of respect in the alley from a lot of the young guys”; and that “‘If something was going down, they would go to Antwuan. He was in charge.” Roberts noted Ball was only convicted of selling 11 grams of crack, but that Ball had done “so much more than that, both before and after.” Despite having seen how crack addiction ravaged his own family, he had chosen at an adult age to lead a narcotics conspiracy that “spread freely” that same “poison . . . on the streets of [his] community.” In the process, he had “show[n] no respect for human life” and had “not hesitate[d] to use violence.” He had sold crack, stolen other crack, and “viciously pistol-whipped Bobby Capies [to deter him from] try[ing] to take over [Ball’s] crack market”; “pressured teenaged girls not to tell anyone about the murder that they saw Dominic Samuel[s] . . . commit,” one Samuels later “admit[ted] that he committed”; and “testified in a grand jury that [he did not] believe in reporting crimes, even murders.” Those kinds of detailed findings were possible only because Roberts was intimately familiar with Ball’s activities from presiding over the trial.
In short, when a judge sentences on the basis of acquitted conduct, he is acting with far more information than is typically available at sentencing. I see no reason to be worried about Ball’s sentence — or, more generally, the fact that judges apply ordinary burdens of proof when resolving factual disputes at sentencing. I am more worried about entangling these sentencing proceedings with ever-mounting procedural requirements that will make it difficult for judges to craft appropriate sentences — lenient, harsh, or somewhere in between. The D.C. Circuit got this one right.