(D)  Acquittal Conduct.  Conduct for which a defendant has been acquitted may still be considered by the sentencing court in all circuits but one;[368]  the Ninth Circuit is the sole exception.[369]  Conduct for which the defendant was acquitted, however, can be used as a sentencing factor consistent with due process so long as the conduct is proven by a preponderance of the evidence.[370]

[368] Cafone, Vacation of Illegal Sentences, Chap. 46, in Criminal Defense Techniques § 46.03[3], n.24 (2003).

[369] United States v. Brady, 928 F.2d 844, 851 (9th Cir. 1991); United States v. Hahn, 960 F.2d 903, 909 n.8 (9th Cir. 1992).

[370] United States v. Watts, 519 U.S. 148 (1997).

Other

POST CON - GROUNDS - SENTENCE - JUDICIAL MISCONDUCT TO CONSIDER INAPPROPRIATE FACTORS AT SENTENCE
At sentencing, the court sometimes makes legal errors. In addition, the judge sometimes takes into account inappropriate considerations in imposing sentence, to which counsel must object or the error is normally waived. See People v. Scott, 9 Cal.4th 331, 353 n.16 (1995)(defense counsels failure to object to sentencing errors bars raising those errors on appeal except for errors considered jurisdictional). For example, it is judicial misconduct to make negative remarks about the defendant being on welfare and fathering children out of wedlock. People v. Bolton, 23 Cal.3d 208, 217 (1979). The court may not threaten to have the defendants castrated. United States v. Duhart, 496 F.2d 941 (9th Cir. 1974) (judge stated he could put defendant in same room with husbands of sex offense victims and possibly cut "something" out of the defendants body).