February 21, 2007 5:28 AM PST

Police blotter: Convicted eBay robber loses appeal

By Declan McCullagh
Staff Writer, CNET News

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Here's another twist: Horne was acquitted by a federal jury on a gun charge, which in his case would have carried a mandatory minimum sentence of 25 years. But U.S. District Judge David Hamilton nevertheless took those unproven allegations into account when sentencing Horne, imposing a sentence of 112 months for the Hobbs Act violations and 84 months for the gun violation. That yielded a total of 16 years and 2 months in prison.

This is a controversial practice. In an impassioned dissent (PDF) in an unrelated case last year, U.S. Circuit Judge Dolores Sloviter said such a judicial practice violates the due process guarantee of the U.S. Constitution's Fifth Amendment and "turns constitutional criminal procedure on its head." She wrote that the defendant's sentence was unconstitutionally increased after the trial judge ruled that he committed an aggravated assault, "despite the fact that no jury found that he had done so, and no fact finder, not even the judge, so found beyond a reasonable doubt."

Nevertheless, the 7th Circuit upheld Horne's sentence, saying judges can use acquittals as evidence of wrongdoing. "An inference that the jury found the defendant to be actually innocent of the gun charge would be particularly far-fetched because there is no doubt that his accomplice brandished a gun during the attempted robbery in question," a three-judge panel said.

The judge in this case used the gun charge of which the defendant had been acquitted to increase the guidelines range for the Hobbs Act charges to 97 to 121 months from 51 to 63 months, and he sentenced Horne to 112 months. Supposing that without this enhancement, the judge would have sentenced him to 57 months (the midpoint of the lower-guidelines range), the difference is 55 months. This is considerable but less than half the sentence.

Excerpts from U.S. Circuit Judge Richard Posner's opinion, joined by judges Frank Easterbrook and Kenneth Ripple: The defendant's argument is wrong. All an acquittal means is that the trier of fact, whether judge or jury, did not think the government had proved its case beyond a reasonable doubt. The facts that a sentencing judge finds in determining what sentence to impose--such facts as the defendant's criminal history, his cooperation or lack thereof in the government's investigation, and his remorse or lack thereof--need be found only by a preponderance of the evidence, the normal civil standard...You can think it slightly more likely than not that a defendant committed some crime without thinking it so much more likely that you would vote to convict him.

An inference that the jury found the defendant to be actually innocent of the gun charge would be particularly far-fetched because there is no doubt that his accomplice brandished a gun during the attempted robbery in question. The judge thought the acquittal was due to the fact that the jury had learned from the cross-examination of one of the defendant's accomplices that to convict the defendant of a second gun charge would subject him to a 25-year mandatory minimum sentence.

This is not a case in which a jury convicts a defendant of one very minor crime and acquits him of the serious crimes with which he was charged, and the judge then bases the sentence almost entirely on those crimes...A judge might reasonably conclude that a sentence based almost entirely on evidence that satisfied only the normal civil standard of proof would be unlikely to promote respect for the law or provide just punishment for the offense of conviction. That would be a judgment for the sentencing judge to make, and we would uphold it so long as it was reasonable in the circumstances.

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