In contrast under the guidelines a sentence must be

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In contrast, under the Guidelines, a sentence must be increased on the basis of relevant conduct that is proven by a preponderance of the evidence.n270 So, if one believes that judges perform their judicial function in good faith, federal judges no longer have an option of ignoring evidence of relevant conduct in determining a defendant's sentence. n271 If the prosecutor provessuch conduct by a mere preponderance of the evidence, the judge must increase the sentence. This enhancement typically makes an enormous difference. For example, in United States v. Manor, n272 the defendant was charged with one count of conspiracy to distribute 250 grams of cocaine and with other distribution counts involving approximately nineteen grams of cocaine. n273 The jury acquitted him on the conspiracy count but convicted him on the intent to distribute nineteen grams. n274 At sentencing, the judgetreated the conspiracy to distribute 250 grams as relevant conduct, which tripled the defendant's sentence exposure. n275 As a result, the defendant faced the identical punishment range he would have faced if he had been convicted of the conspiracy charge. n276 The jury's acquittal was rendered essentially meaningless.Only if a defendant is already at the maximum for the convicted offense will the jury's acquittal shield the defendant from an increase in punishment under the Guidelines. But because the statutory maximum authorized is typically far higher than the average sentence [*94] prescribed by the Guidelines, the relevant conduct provision generally has an enormous effect on the actual sentence a defendant receives.n277 One study, for example, found that half of all sentences had been increased - sometimes doubled or tripled - by uncharged conduct. n278Several respected jurists and commentators have spoken out against this aspect of the Guidelines. Judge Richard Arnold has called this attribute "unseemly and unworthy of the United States of America."n279 Judge Jon Newman has argued that "[a] just system of criminal sentencing cannot fail to distinguish between an allegation of conduct resulting in a conviction and an allegation of conduct resulting in an acquittal." n280 Judge Gilbert Merritt believes that "the "relevant conduct' provisions of the new sentencing code are so fundamentally inequitable and contrary to principles of evenhanded
justice that they violate due process of law." n281 Jeffrey Standen has noted that, under true real offense sentencing, federal statutes become "trivial." n282 He argues, moreover, that real offense guidelines are not needed (or even effective) in checking prosecutorial discretion. Instead, he argues, Congress should spend more time defining crimes with specificity andeliminating overlapping offenses because it is the "current plasticity of the federal code [that] provides the foundation for prosecutors to select among statutes, often carrying different sentencing outcomes, in charging and convicting offenders." n283The Supreme Court, however, has thus far been willing to condone real

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