It's very hard to explain to clients (and the public) that when a federal defendant goes to trial, unless he is acquitted of every count, he risks being sentenced not just for the counts he was convicted of, but also for the counts on which the jury found him not guilty.
Sentencing for acquitted conduct is expressly authorized by the U.S. Sentencing Guidelines.
The absurdity of the policy is illustrated very well by a sentence handed down this week by a federal judge in the District of Columbia. Antwuan Ball was convicted on a single count of distributing 11 grams of crack cocaine for $600.00. He was acquitted of racketeering, conspiracy, and every other crime, including murder.
The judge held Ball accountable for the conduct the jury found he did not commit, and sentenced him to 18 years. The Government had asked for 40 years, even though had Ball taken a plea deal before trial, and pleaded guilty to counts he was later found innocent of, it would have asked for 25 years.
This is stuff straight out of Alice in Wonderland. As Ball's lawyer wrote in a sentencing memo (available on PACER): [More...]
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