SCOTUS Asked to Review the Use of Acquitted Conduct at Sentencing; Petitioner Alleges Its Use is Violative of Sixth Amendment

For Immediate Release: October 3, 2011

Washington, D.C. – Defendant challenges the ability of the district court to use acquitted conduct at sentencing arguing that the use of acquitted crimes to calculate the Guideline range deprives a defendant of his right to a sentence wholly authorized by the jury’s verdict and that the Sixth Amendment guarantees a sentence that is wholly authorized by the jury’s verdict. The use of acquitted conduct to calculate the Guideline range eviscerates the jury’s role as the “Great Bulwark” against the power of the State.

Following a jury trial, Defendant was found guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant was acquitted of the remaining three counts: conspiring to possess with intent to distribute 5 grams or more of a mixture of crack cocaine and heroin, in violation of 18 U.S.C. § 846; possessing with intent to distribute 5 grams or more of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); and possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

At the time of sentencing, the district judge stated, “Unlike the jury, I believe that the evidence clearly established that Defendant was dealing drugs out of that apartment” and noted that the drugs and gun were found near each other. Thereafter, the district court added a four-level enhancement to the base-offense level for possessing a firearm in connection with another felony offense. In applying the four-level enhancement, the district court increased Defendant’s Guideline range from 78-97 months to 121-151 months. Waltower was sentenced to the statutory maximum (120 months) for being a felon in possession of a firearm. See 18 U.S.C. § 924(a)(2) and USSG § 5G1.1(a).

WHAT: Petition for a Writ of Certiorari in Waltower v. United States (Docket No. 11-6738) seeking review of the Seventh Circuit’s opinion reported at United States v. Waltower, 643 F.3d 572 (7th Cir. 2011).

WHO: Craig M. Sandberg of the law firm of Muslin & Sandberg. Mr. Sandberg represents the defendant pursuant to the Criminal Justice Act (“CJA”), Title 18, United States Code, §3006A the Criminal Justice Act (“CJA”), having been appointed by the U.S. Court of Appeals for the Seventh Circuit.

WHERE: Supreme Court of the United States, 1 First Street, NE, Washington, D.C.

NOTE: On November 7, 2011, the Supreme Court denied the petition, United States v. Waltower, 643 F.3d 572 (7th Cir. 2011), cert. denied, 132 S. Ct. 562 (2011)