Case o' The Week: It is Fernandez's Mercado, but Betty Doesn't Buy It -- Acquitted Conduct at Sentencing

In his Mercado, Judge Fernandez sells the status quo: Watts survived Apprendi, and acquitted conduct can be used at sentencing despite Booker. United States v. Mercado, __ F.3d __, No. 05-50624, Slip. Op. at 857 (9th Cir. Jan. 22, 2007), opinion available here. Judge Betty Fletcher isn't buying it, though: in a great dissent, she explains why the use of acquitted conduct at sentencing violates the Sixth Amendment.

Players: Fernandez authors, Graber joins, Judge Betty Fletcher (eloquently) dissents.

Facts: Mercado and his co-D Bravo were charged with RICO and drug conspiracies, and a slew of other gun, murder, and violence allegations in a Mexican Mafia case. Slip op. at 860. A jury convicted them of the drug and RICO conspiracies, but acquitted both on the other serious allegations. Id. Over Apprendi objection by the defense, the district court nonetheless used acquitted conduct to rachet-up their sentences sevenfold: from three years, to twenty. Id. at 865 (Fletcher, B., dissenting).

Issue(s): “[Defendants] assert that in calculating their sentences under the [U.S.S.G.], the district court erred when it considered criminal activity which had been charged in the indictment, but which the jury determined had not been proved beyond a reasonable doubt.” Id. at 859-60.

Held: “We are . . . satisfied that the core principle of Watts lives on and that the district court could constitutionally consider the acquitted conduct.” Id. at 863. In fine, we join, rather than rain upon, the parade of authority that finds no Sixth Amendment violation when sentencing judges consider conduct underlying acquitted counts.” Id. at 864.

Of Note: Despite Fernandez’s “parade” of authority, Judge Betty Fletcher’s dissent is the much more persuasive decision. Fletcher takes the time to undertake the Sixth Amendment analysis (required post-Apprendi) and explains that the majority’s approach is the old Fifth Amendment way of thinking. Her dissent makes sense: using acquitted conduct to inflate a sentence sevenfold is a slap in the jury’s face. And, post-Apprendi, isn’t it the jury that deserves deference, not the district court? It’s hard (if not impossible) to reconcile Mercado with the spirit of Apprendi.

How to Use: One day, when Reason, Justice, and Betty Fletcher prevail, Mercado will be reversed. Plain error review will then hit our clients like a ton of bricks. (See, e.g., Ameline and progeny). No matter how slim the likelihood of this future victory, avoid the future Olano trap with a placeholder objection at sentencing now, despite Mercado. (This is especially true after a trial where acquitted conduct is in play at sentencing).

For Further Reading: Mercado is a Fernandez opinion; ergo, definitions follow.

“Renascent” (id. at 862): adj. “resurgent (rising again as to new life and vigor).” See definition here.

“Mutatis Mutandis” (id. at 864 & n.6): “A direct translation from Latin of mutatis mutandis would read, ‘with those things having been changed which need to be changed’. More colloquially, it can be interpreted as ‘the necessary changes having been made,’ where ‘the necessary changes’ are usually implied by a prior statement assumed to be understood by the reader. It carries the connotation that the reader should pay attention to the corresponding differences between the current statement and a previous one, although they are analogous. This term is used frequently in economics and in law, to parameterize a statement with a new term, or note the application of an implied, mutually understood set of changes.” See definition here.

Or,

A Science-Fiction, role playing game incorporating mutants battling "normal" society: “an interactive gaming environment created with this concept in mind; that in order to create, one must change, and that change is inevitable as a fundamental given. All things change. We can only strive to make the changes that will create a better world.” See the mutatis mutandis web page here.

(Presumably Judge Fernandez intended the former definition . . . .)

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org


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