William & Mary Law Student Note Cited by the U.S. Sixth Circuit| February 14, 2008
A student Note published in the William and Mary Law Review by James J. Bilsborrow '08, the journal's Senior Articles Editor, has been cited in four dissents issued by the United States Court of Appeals for the Sixth Circuit. His note, Sentencing Acquitted Conduct to the Post-Booker Dustbin, 49 Wm. & Mary L. Rev. 289 (2007), was cited by Judge Gilbert S. Merritt, dissenting in United States v. Sexton, 2008 U.S. App. LEXIS 484 (6th Cir. 2008), United States v. Thompson, 2008 U.S. App. LEXIS 2936 (6th Cir. 2008), United States v. Phinazee, 2008 U.S. App. LEXIS 2697 (6th Cir. 2008), and United States v. Sedore, 2008 U.S. App. LEXIS 869 (6th Cir. 2008).
Bilsborrow's Note critically examines the phenomenon of "acquitted conduct" in federal sentencing practice, arguing that the ability of a sentencing judge to consider conduct of which an offender has been acquitted violates the Sixth Amendment. Observing that part of the problem is a rigid adherence to the United States Sentencing Guidelines, the Note provides empirical evidence that, even after the Supreme Court ruled in United States v. Booker that the Guidelines could not be applied mandatorily, lower courts continue to act as if they still are mandatory. The Sixth Circuit dissents, which argue that the Sixth Circuit is incorrectly implementing the Supreme Court's sentencing jurisprudence, have cited Bilsborrow's Note to support their assertion that the Guidelines continue to hold undue sway in lower courts.
Bilsborrow, who has a general interest in criminal procedure topics, focused his Note on acquitted conduct because it offered a relatively unique opportunity for his work to have an impact on the trajectory of the law. "I was drawn to the fact that federal sentencing jurisprudence is rapidly changing, meaning that there is room for academic debate to influence the law. Additionally, the practice of judges considering acquitted conduct just seems normatively wrong to me."
Although Bilsborrow knew that federal sentencing jurisprudence was in a state of extreme flux, he didn't actually anticipate that he would be cited by a federal court. When he discovered that his Note had been cited by the Sixth Circuit, therefore, he didn't complain: "It's something I never really expected, but it's extremely flattering."
Bilsborrow is Senior Articles Editor of the William and Mary Law Review, the Vice President of the American Constitution Society, and a member of the National Trial Team. Following his graduation in May, he will clerk for Judge Christopher Conner in the U.S. District Court for the Middle District of Pennsylvania, after which he will join Cravath, Swaine & Moore in New York.