Whether defendant was entitled to resentencing; Consideration of acquitted conduct in sentencing; Distinguishing People v. Beck & People v. Roberts (On Remand); United States v. Crosby (2d Cir.)

Holding that the trial court did not rely on acquitted conduct in sentencing defendant, the court affirmed his sentences in these consolidated cases. He was convicted of carjacking and armed robbery in two separate cases. In the first case, the trial court sentenced him as a second-offense habitual offender to concurrent terms of 18 to 30 years for each conviction. In the second case, the trial court sentenced him as a second-offense habitual offender to concurrent terms of 20 to 30 years for each conviction. He appealed both, and each time the court remanded for a Crosby hearing. The trial court held a combined resentencing hearing where it resentenced him to the same sentences it originally imposed. On appeal, the court rejected his argument that he was entitled to resentencing as the trial court violated his right to due process by considering acquitted conduct in determining his sentences. In so doing, it distinguished Beck and Roberts, noting that neither case “addressed whether the mere inclusion of a reference to a jury’s acquittal of charged offenses in a different, separate case in the defendant’s criminal history reported in a PSIR violates the principle articulated in Beck.” Here, the trial court “did not reference any acquitted conduct during the resentencing hearing or even intimate that such conduct influenced its sentencing decisions.” The court held that “a sentencing court may review a PSIR containing information on acquitted conduct without violating Beck so long as the court does not rely on the acquitted conduct when sentencing the defendant.” It then concluded that because no evidence in these cases established that “the sentencing court relied on acquitted conduct referenced in the PSIRs when sentencing defendant,” he failed to establish his claims of error.