Acquitted conduct issue may be before the Supreme Court again

One issue that non-lawyers (as well as non-criminal lawyers) completely do not believe is that you can be sentenced based on conduct for which you have been acquitted.  That's been the law since 1997 in a case called Watts, which held that acquitted conduct, proved by a preponderance of the evidence, could be used to increase a defendant's sentence.  This concept is being challenged again in Ball v. United States.  From the Blog of the Legal Times:

 The issue comes to the court in a Washington drug case, Ball v. United States, along with significant help from a leading sentencing scholar, the libertarian Cato Institute and the Rutherford Institute. According to the court’s docket, the petition will be before the court for consideration—along with hundreds of others—at its September 29 conference.
After an eight-month trial in 2007, the jury found Antwaun Ball, Desmond Thurston and Joseph Jones guilty of selling between two and 11 grams of cocaine, relatively small amounts. But they were acquitted on racketeering and other charges that they were part of an extensive narcotics conspiracy.
Yet when Judge Richard Roberts sentenced the three men, he said he “saw clear evidence of a drug conspiracy,” and on that basis ultimately sentenced Ball, Thurston and Jones to 18, 16 and 15 years in prison, respectively—four times higher than the highest sentences given for others who sold similar amounts of cocaine, according to the petition in their case.
“Nobody in the federal system gets this kind of time,” said Stephen Leckar, of counsel to Kalbian Hagerty in Washington, who represents the defendants. “In this country, people are punished for charges that are proven to a jury’s satisfaction.”
Asserting that the sentencing judge “marginalized the role of the jury,” Leckar said the jury foreman in his case wrote a letter to the judge. The letter stated, “It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds out their work may not be given the credit it deserves.”
On appeal, the U.S. Court of Appeals for the D.C. Circuit affirmed the sentence even though it was based in part on acquitted conduct.
“Although we understand why appellants find sentencing based on acquitted conduct unfair,” the court said, “binding precedent of this court establishes that the practice does not violate the Sixth Amendment when the conduct is established by a preponderance of the evidence and the sentence does not exceed the statutory maximum for the crime.” The “preponderance of the evidence” standard for sentencing is easier to meet than the “beyond a reasonable doubt” standard jurors use to find guilt.