No. 07-605
In the Supreme Court of the United States
MARK HURN, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
In the Supreme Court of the United States
No. 07-605
MARK HURN, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
MEMORANDUM FOR THE UNITED STATES
IN OPPOSITION
1. Petitioner contends (Pet. 7-18) that his Sixth Am endment rights were violated because the district court, in determining his sentence, relied in part on conduct underlying charges on which the jury had returned a verdict of not guilty. This Court has recently received several other petitions for writs of certiorari raising the same or similar claims. As the government has ex plained in briefs in opposition to those petitions, the ac quitted conduct issue does not warrant this Court's re view. See, e.g., Gov't Br. in Opp. at 8-13, Mercado v. United States, petition for cert. pending, No. 07-5810 (filed Nov. 30, 2007) (available at 2007 WL 4348939); Gov't Br. in Opp. at 7-13, Ashworth v. United States, petition for cert. pending, No. 07-8076 (filed Feb. 8, 2008).1
In United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam), this Court held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponder ance of the evidence." Although Watts specifically ad dressed a challenge to consideration of acquitted con duct based on double jeopardy principles rather than the Sixth Amendment, the clear import of the Court's deci sion is that sentencing courts may take acquitted con duct into account at sentencing without offending the Constitution. See ibid. That principle predated the Sentencing Guidelines, see id. at 152, and it fully applies to the advisory Guidelines put in place by United States v. Booker, 543 U.S. 220 (2005).
Since Booker, every court of appeals has held that a district court may consider acquitted conduct at senten cing. See United States v. Jimenez, No. 05-4098, 2008 WL 115206, at *20 (3d Cir. Jan. 14, 2008); United States v. Ashworth, 247 Fed. Appx. 409 (4th Cir. 2007), petition for cert. pending, No. 07-8076 (filed Dec. 5, 2007); United States v. Mendez, 498 F.3d 423, 426-427 (6th Cir. 2007); United States v. Hurn, 496 F.3d 784, 788 (7th Cir.), petition for cert. pending, No. 07-605 (filed Nov. 1, 2007); United States v. Mercado, 474 F.3d 654, 656-658 (9th Cir.), petition for cert. pending, No. 07-5810 (filed Aug. 8, 2007); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006); United States v. Farias, 469 F.3d 393, 399 & n.17 (5th Cir. 2006), cert. denied, 127 S. Ct. 1502 (2007); United States v. High Elk, 442 F.3d 622, 626 (8th Cir. 2006); United States v. Dorcely, 454 F.3d 366, 371 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006); United States v. Vaughn, 430 F.3d 518, 525-527 (2d Cir. 2005), cert. denied, 547 U.S. 1060 (2006); United States v. Magallanez, 408 F.3d 672, 684-685 (10th Cir.), cert. de nied, 546 U.S. 955 (2005); United States v. Duncan, 400 F.3d 1297, 1304-1305 (11th Cir.), cert. denied, 546 U.S. 940 (2005).2
This Court has repeatedly denied petitions for writs of certiorari raising the issue. See, e.g., Edwards v. United States, 127 S. Ct. 1815 (2007); Dorcely v. United States, 127 S. Ct. 691 (2006); Armstrong v. United States, 127 S. Ct. 109 (2006); Lynch v. United States, 127 S. Ct. 89 (2006); Magluta v. United States, 126 S. Ct. 2966 (2006). There is no reason for a different result here. Nevertheless, to the extent that this Court is hold ing petitions raising this issue for further consideration, it would be appropriate to accord similar treatment to the petition in this case.
2. Petitioner additionally contends (Pet. 18-22) that his sentence was unreasonable under 18 U.S.C. 3553(a) because it was based in part on acquitted conduct and purportedly failed to account properly for petitioner's limited mental capacity. Neither claim merits review. Petitioner did not raise the argument that the district court's consideration of acquitted conduct rendered his sentence unreasonable in either the district court or the court of appeals. See Pet. C.A. Br. 13-17; Pet. C.A. Re ply Br. 2-4. Nor did the court of appeals address that argument. For that reason, it is not properly presented here. United States v. Williams, 504 U.S. 36, 41 (1992). In any event, the courts of appeals have correctly and repeatedly rejected similar contentions. See 18 U.S.C. 3661.3 There likewise is no need for further review of petitioner's fact-bound claim that his diminished mental capacity rendered his sentence unreasonable. As the court of appeals explained, the district court "reasonably concluded that, despite [petitioner's] low I.Q., he knew that he was engaging in serious criminal activity and that-given the prior conviction for the same offense-a Guidelines range sentence was necessary to deter him from further criminal behavior." Pet. App. A14. The district court did not abuse its discretion in weighing the factors under 18 U.S.C. 3553(a). See Gall v. United States, 128 S. Ct. 586, 597-598 (2007).
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
FEBRUARY 2008
1 We have served petitioner with a copy of the government's brief in opposition in Ashworth.
2 After the Sixth Circuit in Mendez upheld a district court's consider ation of acquitted conduct at sentencing, a panel of the Sixth Circuit in United States v. White, 503 F.3d 487 (6th Cir. 2007), issued an opinion adhering to the Mendez ruling but suggesting that the defendant file a petition for rehearing en banc on the question whether the continuing use of acquitted conduct as a sentencing enhancement violates United States v. Booker. On November 30, 2007, the Sixth Circuit withdrew the panel opinion in White and granted rehearing en banc. The Mendez ruling, however, remains in effect in the Sixth Circuit. Moreover, be cause the en banc court in White may uphold the Mendez ruling, this Court's review would be premature at this time.
3 See, e.g., United States v. Dawkins, 240 Fed. Appx. 598, 599 (4th Cir.), cert. denied, 128 S. Ct. 632 (2007); United States v. Four Pillars Enter. Co., No. 06-3297, 2007 WL 3244034, at *4-*5 (6th Cir. Oct. 30, 2007) (unpublished); United States v. Fazio, 487 F.3d 646, 659-660 (8th Cir.), cert. denied, 128 S. Ct. 523 (2007); United States v. Demeulen aere, 205 Fed. Appx. 685, 687 (10th Cir. 2006), cert. denied, 127 S. Ct. 1340 (2007); United States v. Dorcely, 454 F.3d 366, 375-376 (D.C. Cir.), cert. denied, 127 S. Ct. 691 (2006).
