Mercado

BACKGROUND

As part of the government’s prosecution of members of the Mexican Mafia, Mercado and Bravo were charged with: (1) violating RICO, 18 U.S.C. § 1962(c); (2) RICO conspiracy, 18 U.S.C. § 1962(d); (3) conspiracy to distribute narcotics, 21 U.S.C. § 846; (4) five counts of violent crimes in aid of racke- teering activity, 18 U.S.C. § 1959(a); (5) conspiracy to com- mit murder; and (6) five counts of brandishing and discharging a firearm. They were found guilty of the RICO conspiracy and of the drug conspiracy, but were acquitted of the other charges.

At sentencing,2 the district court stated that the question was “whether it remains permissible after Booker for a Court to consider acquitted conduct when sentencing a defendant, provided that the sentence imposed does not exceed the statu- tory maximum sentence authorized for crimes for which the defendant was convicted.” The district court concluded that “when a district court makes a determination of sentencing facts by a preponderance test under the now-advisory guide- lines, it is not bound by jury determinations reached through application of the more onerous, reasonable doubt standard.” Thus, it considered the criminal…