May 28, 2008 When acquitted conduct is considered for federal sentencing
Last December 2007’s Gall and Kimbrough opinions from the U.S. Supreme Court raise questions about whether it any longer is legitimate for sentencing courts to consider acquitted conduct in setting a sentence.
In an unpublished opinion from March 21, 2008, the Fourth Circuit reversed a sentencing that refused to consider acquitted conduct, and held that the standard at sentencing is whether a crime can be proven by a preponderance of the evidence, even if the conduct was acquitted under the beyond a reasonable doubt standard. U.S. v. Ibanga, Crim. No. 06-4738 (4th Cir. March 21, 2008).
Until the Supremes review this issue on cert., it is necessary to know how one’s circuit has or will handle this issue post-Gall and Kimbrough. .