United States v. Juwa, Docket No. 06-2716-cr (2d Cir. Nov. 28, 2007) (found here)
Notwithstanding an advisory Guidelines range of 24-30 months for a guilty plea to one count of possession of child pornography, Juwa was sentenced to 90 months imprisonment. In declaring its reasons for the upward departure, the district court cited the fact that Juwa had engaged in sexual conduct with a minor "on repeated occasions." Yet Juwa had only indicated his intent to plead guilty to one count of felony sexual abuse in a parallel state case. It was therefore unclear to the Second Circuit to what extent the district court impermissibly based its sentencing enhancement on unsubstantiatied charged conduct, thereby rendering the 90 month sentence procedurally unreasonable. The Second Circuit ordered a reversal and remand.
We all know that a sentence can be based on all sorts of relevant conduct, including acquitted conduct and even uncharged conduct, so long as it is established by a preponderence of the evidence. I've criticized here the use of acquitted conduct in sentencing. And the Second Circuit in Juwa indicates its agreement that there are limits to the use of relevant conduct in determining and imposing sentence. As the Second Circuit held:
[T]here are distinct limits to this discretion, and they include a defendant's due process right to be sentenced based on accurate information. . . . As the Third Circuit stated in United States v. Matthews . . . "[f]actual matters considered as a basis for sentence must have 'some minimal indicium of reliability beyond mere allegation.'
In Juwa's case, the problem was the there simply was "no evidence" to support the finding that he had abused more than one child "apart from the charges contained in the state indictment," which the Second Circuit described as "bare-bones" and "insufficient to support a factual underpinning for sentencing purposes." The Second Circuit went on to hold that:
We therefore adhere to the prescription that at sentencing, an indictment or a charge within an indictment, standing alone and without independent substantiation, cannot be the basis upon which a criminal punishment is imposed. Some additional information, whether testimonial or documentary, is needed to provide evidentiary support for the charges and their underlying facts.
Juwa is a move in the right direction for acquitted conduct sentencing. It provides some procedural safeguards, and broadly requires that unsubstantiated charged conduct must have some modicum of reliability before it can be used as a basis for an enhanced sentence. I expect that defense attorneys in the Second Circuit (and elsewhere) will rely on Juwa to test and challenge courts when consideration of relevant conduct is at issue.