U.S. District Judge Emmet Sullivan planned to sentence a defendant in a drug case to time-served but then changed his mind—after extensive back-and-forth between the opposing lawyers—and ordered the man locked up for an additional eight years. That sentence, the lawyer for the defendant argued today in the U.S. Court of Appeals for the D.C. Circuit, improperly took into account conduct that was ultimately dismissed.
The debate about trial judges’ use of acquitted conduct has come up in circuit courts across the country, and last summer a D.C. Circuit panel noted that “Congress or the Sentencing Commission certainly could conclude as a policy matter that sentencing courts may not rely on acquitted conduct. But under binding precedent, the Constitution does not prohibit a sentencing court from relying on acquitted conduct.” The panel affirmed a sentence that incorporated acquitted conduct.
At issue in the government's case against Sorenson Oruche case—heard today by Chief Judge David Sentelle, Senior Judge A. Raymond Randolph and Judge Douglas Ginsburg—is whether Sullivan improperly used acquitted conduct in enhancing the sentence against Oruche, who was convicted of drug crimes last year U.S. District Court for the District of Columbia.
Oruche’s attorney, Michael O’Shaughnessy of Finnegan, Henderson, Farabow, Garrett & Dunner—the firm represented Oruche pro bono—argued there was no credible evidence linking Oruche to more than 608 grams of heroin. Oruche was acquitted of a conspiracy charge that was rooted in distribution of more than 1,000 grams of heroin. O’Shaughnessy said Sullivan used the charge to bump up the guideline range.
The bulk of today's argument focused on whether Sullivan treated the guidelines as mandatory or advisory. O’Shaughnessy said Sullivan applied sentencing guidelines as if they were mandatory. Sentelle questioned that argument. “He didn’t say, ‘I have to do this,’” Sentelle noted. Justice Department attorney Loren Alikhan told the panel that Sullivan got Oruche’s sentence right.
Oruche’s case goes back 2001, when he was indicted, and it has already been up to the D.C. Circuit once before on appeal. In 2007, the D.C. Circuit reversed Sullivan's order for a new trial, saying that the judge was mistaken about Brady violations. Allegations of prosecution misconduct plagued Oruche's case.