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ATLANTA � While Atlantans debate the fairness of the 30-month prison sentence issued to former Mayor Bill Campbell this week, the ruling has reinvigorated a long-running argument over federal judges’ discretion to base their punishment decisions on allegations rejected by trial juries. At issue is that portion of U.S. District Judge Richard Story’s sentence that was based on his finding that Campbell had taken $55,000 in illegal bribes from a city contractor. Story used a preponderance-of-the-evidence standard, but in March, using the more stringent beyond-a-reasonable-doubt standard, a jury had acquitted Campbell of bribery charges following an eight-week trial. A blog on sentencing issues maintained by Douglas Berman, a law school professor at Ohio State University, was buzzing with activity over the Campbell sentence this week. Visitors weighed in with the same arguments that have been lobbed back and forth since the federal sentencing guidelines were promulgated in 1987. Berman said in an interview Wednesday that last year’s U.S. Supreme Court decision in United States v. Booker, 543 U.S. 220, left open whether judges could use their findings of so-called “acquitted conduct” to increase sentences. The Booker decision was the latest in a recent series of cases that have reshaped sentencing law by limiting judges’ powers to base sentences on facts that have not been determined by juries. Berman said, however, that despite Booker, Eleventh Circuit U.S. Court of Appeals precedent does not bode well for the ex-mayor on appeal. “I’m not betting on Campbell,” said Berman, whose blog is www.sentencing.typepad.com. On Tuesday Campbell told a press conference that the sentence was unjust and “an attempt to undo the jury’s verdict” on the bribery charges, which he has vehemently denied. Story explained in court how he calculated Campbell’s sentence under the guidelines. Because Story found that Campbell had failed to pay nearly $63,000 in taxes, the judge placed Campbell’s offense level at 13 under the guidelines, corresponding to a 12 to 18 month sentence. Then Story hit Campbell with three findings that raised the offense level six points. He issued a: � two-point increase for obstructing justice, based on new evidence from a former poker buddy who said Campbell had taken records sought by a federal grand jury; � a two-point increase for using sophisticated means to conceal his crime, based on findings that the poker buddy maintained a credit card for Campbell’s use and that Campbell had used campaign funds for personal expenses; and � a two-point increase for failing to report income from criminal activity, based on Story’s conclusion that Campbell took bribes. The increases, or “enhancements,” put Campbell’s offense level at 19, which has a sentencing range of 30 to 37 months. Story chose the lowest sentence within that range. Even if Story had not enhanced Campbell’s level two points on the bribery findings, Campbell still would have been in the range of 24 to 30 months, according to the guidelines. “It’s not as though that drove the entire sentence,” said U.S. Attorney David Nahmias, who added that Story also could have given the same enhancement if he had found that some of the income Campbell failed to report was gotten through illegal gambling winnings. At trial, Campbell’s defense team had suggested that poker games � not bribes from city contractors � were one of Campbell’s cash sources, but the lawyers argued at sentencing that nontaxable sources, including gifts from Campbell’s late mother, kept up his cash flow. USE OF ACQUITTED CONDUCT One of Campbell’s lawyers, Jerome Froelich Jr., acknowledged that under current law acquitted conduct can be used by a sentencing judge � but said that was true only in certain circumstances. Allegations that Campbell took a bribe were insufficiently related to Campbell’s tax evasion conviction for Story to consider them at sentencing, said Froelich. Froelich, who said that he won’t be handling Campbell’s appeal, said he has no doubt that the use of acquitted conduct will be an issue in any appeal. “I also think it’s an issue that courts should take up because it really undermines the jury system otherwise,” he added. The system established by the federal sentencing guidelines in 1987 appeared to allow � if not require � Story to consider allegations rejected by a jury, if he found them to be true under the lesser preponderance-of-the-evidence standard. However, this use of acquitted conduct at sentencing has been one of the top gripes of sentencing guideline critics, who say that the system unjustly disregards jury verdicts. When the Supreme Court handed down its 2004 blockbuster opinion on sentencing, Blakely v. Washington, 542 U.S. 296, those critics found some hope in the court’s suggestion that a judge couldn’t impose a sentence based on facts not found by a jury. More than six months later, the high court put to rest some of the uncertainty created by Blakely when it issued its decision in Booker. That decision said that, because the Sixth Amendment requires juries, not judges, to find facts that determine sentences, the federal sentencing guidelines must be considered merely advisory. The Eleventh Circuit has said Booker means that judges must correctly calculate a defendant’s sentence under the federal guidelines, then impose a sentence that is “reasonable” in light of the federal statute governing sentences, which includes the guidelines among the factors to consider. Most courts of appeals that have considered the issue, including the Eleventh Circuit, have said that it’s still proper to use acquitted conduct in making the guidelines calculation after Booker, according to Berman. However, some district judges have refused to employ acquitted conduct in sentencing defendants. One of those judges, U.S. District Judge Nancy Gertner of Massachusetts, said in a sentencing opinion last year that Booker “substantially undermines the continued vitality of” prior Supreme Court precedent approving the use of acquitted conduct under the guidelines. “It makes absolutely no sense to conclude that the Sixth Amendment is violated whenever facts essential to sentencing have been determined by a judge rather than a jury � and also conclude that the fruits of the jury’s efforts can be ignored with impunity by the judge in sentencing,” wrote Gertner, citing Blakely, in the case of United States v. Pimental, 367 F.Supp.2d 143 (D. Mass. 2005). Nahmias said that it was proper for a sentencing judge to consider allegations rejected by the jury because the sentencing judge employs a lower standard of proof than that used by the jury. He said that because judges are to consider a number of factors in determining a sentence, requiring facts to be proven beyond a reasonable doubt at sentencing “would make sentencing hearings into pretty difficult proceedings that would take longer than trials.” The case is United States v. William C. Campbell, 1:04-CR-424 (N.D. Ga.). Alyson M. Palmer is a reporter with the Fulton County Daily Report, a Recorder affiliate based in Atlanta. Reporter R. Robin McDonald contributed to this story.

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