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U.S. v. WHITE

No. 05-6596.

551 F.3d 381 (2008)

UNITED STATES of America, Plaintiff-Appellee, v. Roger Clayton WHITE, Defendant-Appellant.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: December 24, 2008.

Attorney(s) appearing for the Case

ARGUED: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee. Douglas A. Berman, The Ohio State University, Moritz College of Law, Columbus, Ohio, for Amicus Curiae. ON BRIEF: Kevin M. Schad, Schad & Schad, Lebanon, Ohio, for Appellant. Charles P. Wisdom, Jr., Andrew Sparks, Assistant United States Attorneys, Lexington, Kentucky, Nina Goodman, United States Department of Justice, Washington, D.C., for Appellee. Douglas A. Berman, The Ohio State University, Moritz College of Law, Columbus, Ohio, Mark D. Harris, Jeffery A. Gross, Anna G. Kaminska, Proskauer Rose LLP, New York, New York, for Amicus Curiae.

COOK, J., delivered the opinion of the court, in which BOGGS, C.J., BATCHELDER, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, and GRIFFIN, JJ., joined. MERRITT, J. (pp. 386-97), delivered a separate dissenting opinion, in which MARTIN, DAUGHTREY, MOORE, COLE, and CLAY, JJ., joined.

OPINION

COOK, Circuit Judge.

This is a sentencing appeal. When a jury convicted Roger Clayton White of two counts, but acquitted him of others, the district court looked to conduct underlying the acquitted counts to enhance White's offense level under the Sentencing Guidelines. White questions whether this practice withstands Sixth Amendment scrutiny, and we hold that it does so long as the resulting sentence does not exceed the jury-authorized United States...

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