I don’t necessarily disagree with most of my co-blogger Paul Cassell’s analysis Tuesday of Antwuan Ball’s sentence. Yes, sentencing for acquitted conduct strikes a lot of people as unfair, but as Paul says:

So as 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.

But I do want to flag a different reason to be troubled by what happened in this case — a reason that Justice Antonin Scalia has suggested raises a constitutional problem (and as to which the Supreme Court has not yet disagreed).

As I understand the D.C. Circuit’s opinion, the very long sentence given to Ball is upheld because of the facts found by the district judge. Given the length of that sentence, it would not have been upheld without the district court’s findings. (The court makes this clear around pages 9-11 of the opinion, including references to the full culpability of the defendants and “consideration of the acquitted conduct [that] multiplies a defendant’s sentence severalfold.”)

But as Scalia explained at length in his concurrence in Rita, this is a problem. If appellate courts affirm a long sentence only because of the judge-found facts, then they are essentially creating a new common-law maximum sentence; they’re implying that a 19-year sentence for simple possession would be unreasonable, but that sentence for a massive conspiracy would be reasonable.

That means that there’s a maximum sentence imposed on the district judge from above, unless the judge finds a fact that justifies a higher sentence. This kind of imposition, Apprendi and Blakely and Booker said, was unconstitutional. It’s not the district judge’s decision to issue a long sentence that’s the problem; it’s the requirement that the judge justify that sentence using judge-found facts.

As Scalia put it in Rita, “… there will inevitably be some constitutional violations under a system of substantive reasonableness review, because there will be some sentences that will be upheld as reasonable only because of the existence of judge-found facts.” He then reiterated this point in Gall. (“The Court has not foreclosed as-applied constitutional challenges to sentences. The door therefore remains open for a defendant to demonstrate that his sentence, whether inside or outside the advisory Guidelines range, would not have been upheld but for the existence of a fact found by the sentencing judge and not by the jury.”)

This isn’t necessarily to criticize this D.C. Circuit panel; the court concluded that Scalia’s arguments have already been rejected by D.C. Circuit precedent, and maybe that is right. But they haven’t been rejected by the Supreme Court. The court upheld the general use of acquitted conduct upheld in United States v. Watts, but this is a distinct problem (and I’m writing this post because the two problems are often confused).

Now maybe in the end the Supreme Court will not agree with Scalia’s view, but it seems to me that they ought to consider it when presented with a good vehicle. In Rita and Gall, the problem was hypothetical. In United States v. Marlowe, Scalia finally found a sentence that he thought was an example of the problem and (unsuccessfully) urged the court to take the case. (The government had argued that Marlowe was a bad vehicle for the issue, because one of the judges below had stressed that his sentence would be reasonable even without the judge-found fact.)

It seems to me that Antwuan Ball’s case raises the Rita/Gall/Marlowe problem again. I would not be surprised if Scalia concluded that Ball’s case is a good vehicle to finally confront that question. Maybe the Supreme Court will even agree.