In a short summary order issued on February 9, 2018, in the case of United States v. Muir, 17-150, the Second Circuit affirmed a sentence and reminded everyone that nothing about Apprendi, Booker and their progeny changes the rule that existed even prior to the Sentencing Reform Act: uncharged and acquitted conduct can be relied upon by the district court at sentencing. This is not a violation of either the Due Process Clause or the Double Jeopardy Clause of the Fifth Amendment, nor does it violate the Sixth Amendment’s guarantee of the right to trial by jury. So long as the court finds that the relevant facts are proved by a preponderance of the evidence and do not increase either the statutory minimum or maximum sentence, there is no violation of law.

This has been the law in the Circuit for many years, even though as the Court notes, “these questions continue to raise some constitutional controversy.” It would take a decision by the Supreme Court to change this rule. Given the many twists and turns since Apprendi v. New Jersey, 530 U.S. 466 (2000) was decided, it is hard to say that this rule never will be changed. Indeed, the spirit of Apprendi and the Booker merits opinion—which stressed the need for a jury to find all of the facts necessary to impose a sentence longer than the maximum—is difficult to reconcile with a system in which a judge can consider acquitted conduct as a basis for increasing the defendant’s advisory Guidelines range and ultimate term of imprisonment. Nevertheless, in Muir, the Circuit correctly applied this long-standing law in affirming the sentence imposed by the district court.