- The Washington Times - Monday, August 25, 2014

The Supreme Court will meet next month to decide whether to hear the appeal of a D.C. man serving 18 years in prison on a $600 drug deal — a case championed by civil liberties groups, who say it provides a case study in judicial overreach.

The appeal by Antwuan Ball, along with two co-defendants, is the latest challenge against a practice called acquitted conduct sentencing, which lets judges mete out tougher sentences based on findings that jurors rejected.

Ball, Desmond Thurston and Joseph Jones were convicted of street-level drug deals after a six-month racketeering trial that saw jurors reject a host of far more serious charges including murder, conspiracy, assault and drug trafficking charges.

But when they were sentenced, U.S. District Court Judge Richard W. Roberts made a formal finding that, despite the jury’s verdict, all three men took part in a drug conspiracy. That increased their sentences drastically.

Jones, for example, was convicted of two street-level drug transactions worth $35 and was sentenced to 17 years in prison.

“This case presents the court with an opportunity to rule on a recurring issue in federal sentencing: Is it unconstitutional to sentence an offender primarily on facts alleged by the government and unanimously rejected by a jury?” Ball’s appeals attorney, Steve Leckar, wrote in an email to The Washington Times.

Ball’s case, covered in a series of articles in The Times, has received scant attention in Washington, but legal scholars and judges have followed it closely.

The Cato and Rutherford institutes have filed briefs on behalf of Ball, urging the court to take up the case over concerns about what they called “carte blanche” powers being given to federal judges.

But Solicitor General Donald Verrilli Jr. argued in the government’s brief that the law allows judges to take all sorts of conduct into consideration when sentencing defendants. And, unlike juries, which must find facts beyond a reasonable doubt, judges need only make findings based on a preponderance of the evidence.

The government says guidelines are advisory, not mandatory, and the statutory range for distribution of 5 or more grams of crack cocaine is five to 40 years.

Attorneys for the three convicted men say letting judges make factual findings in defiance of a jury’s conclusions would render the jury trial system impotent.

If Ball were sentenced solely on the charge he was convicted of at trial, he would have faced a maximum of 71 months in prison under federal sentencing guidelines.

Instead, once Judge Roberts found Ball took part in a conspiracy, the sentence more than tripled.

A circuit court rejected Ball’s appeal earlier.

It’s clear that at least one Supreme Court justice is interested in Ball’s appeal. Many petitions are tossed without comment by the high court. But after Ball and the other two convicts filed a brief, the court asked the Justice Department to respond and later put the case on the calendar for a conference in late September.

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