Two months ago, several of us blogged about a then-recent D.C. Circuit sentencing case in the conviction of Antwuan Ball. In a nutshell, Ball was charged with participating in a big drug conspiracy, and he went to trial. The jury found him not guilty on all counts except for a single crack charge.

At sentencing, however, the judge concluded that Ball was in fact guilty of the broader conspiracy, and it sentenced him on that basis. The use of this kind of “acquitted conduct” at sentencing is controversial, but as co-blogger Paul Cassell has argued, the use of acquitted conduct does not necessarily violate the Court’s precedents:

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.

True so far as it goes. But as I wrote at the time, Ball’s sentence raises a separate problem — so far as I can tell, the reasonableness review imposed by the D.C. Circuit upheld Ball’s sentence only because of the facts found by the district judge. So while the judge-found facts did not increase the statutory maximum, they did increase the common-law maximum sentence imposed by the D.C. Circuit:

[A]s 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.

Ball’s lawyer has now filed a cert. petition, and it raises the narrower question I described in my post. [Full disclosure, I have spoken a little bit with Ball’s lawyer about the case.]

As the petition puts it (with alterations and footnotes omitted):

This petition asks the Court to confirm that the Sixth Amendment as-applied doctrine of reasonableness review set forth in [Justice Scalia’s] concurrence in Rita v. United States (joined by Justice Thomas), governs the review of sentences which would be deemed unreasonably lengthy in the absence of judge-made factual findings. . . .
[The] judge-found facts were the “legally essential predicate” for Petitioners’ sentences, which are the demonstrable outliers meted out for the offense of conviction. Yet the Government never contended and no court ever found that those sentences would have been reasonable in the absence of the trial judge’s findings.
Although the constitutionality of basing sentences on acquitted conduct has been questioned in general, Petitioners seek certiorari here on a distinct question: does “the door remain open” for a defendant to demonstrate that a sentence would not be “upheld but for the existence of a fact found by the sentencing judge and not by the jury?”

The petition is docketed here, and the United States has declined to respond it. That means that it will be automatically denied after the May 29 conference, unless a Justice calls for a response. Will that happen? Justice Scalia’s last dissent from denial of cert. on this issue was five years ago. I suppose the real question is whether Justices Scalia and Thomas have given up, and whether anybody else has taken up their cause.