Professor Berman had reported at Sentencing Law and Policy here on Judge Gertner's decision in US v. Pimental, No. 99-10310-NG (D. Mass. April 15, 2005). Judge Gertner has now issued an Amended Sentencing Memorandum in US v. Pimental, No. 99-10310-NG (D. Mass. April 21, 2005). This is a very interesting case in which Judge Gertner deals with acquitted conduct as well as the standard of proof post-Booker.
The conduct that the Government had urged the Court to consider at sentencing "is the very same conduct that the jury considered and of which they acquitted the defendant. At issue, then, is the continued vitality of the Supreme Court’s decision in United States v. Watts, 519 U.S. 148 (1997), which upheld an increased sentence for the defendant based on acquitted conduct, in light of its recent decision in Booker."
This case had already been on appeal once before, after the jury had acquitted one defendant on all counts and had convicted the other of all but two counts. Judge Gertner hjad then granted a post verdict motion for judgment of acquittal. The First Circuit reversed. See U.S. v. Pimental, 380 F.3d 575 (1st Cir. 2004). The case on appeal was decided on August 30, 2004, but there is no mention of Blakely or Booker. It merely reverses the post-verdict judgment of acquittal granted by Judge Gertner and remands for resentencing on the two Counts on which the jury convicted defendant. We have little doubt that there will be another First Circuit Pimental opinion down the line.
This is yet another thoughtful opinion from Judge Gertner, who seems to always be on the cutting edge of sentencing law.
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