In federal court, when a jury convicts on some charges and acquits on others, at sentencing the judge still must determine whether the acquitted conduct was proven by a preponderance of the evidence.

This point was driven home yesterday, when the Fourth Circuit remanded a drug sentencing, saying the trial judge “erred by viewing the jury’s drug-quantity determination as precluding the court from finding a higher quantity for sentencing purposes,” so long as the sentence was within the forty-year maximum permitted by the jury’s quantity determination. U.S. v. Young, ___ F.3d ___    (4^th Cir., June 28, 2010).

This Young case and the separate sovereigns doctrine are examples of why federal court often is no picnic for criminal defense.