A federal appeals court has upheld a 22-year prison sentence for a convicted bank robber, determining there was enough evidence for nearly tripling the original sentence based on two other charges he was acquitted of in connection with the 2003 crime.

Sentencing guidelines called for Roger Clayton White to be sentenced to 8 years in prison in 2003 for the bank robbery conviction, but nothing after being acquitted of gun charges related to the robbery. A judge tacked on the extra years based on the gun charges.

The U.S. 6th Circuit Court of Appeals ruled on Dec. 24 that the evidence allowed the sentence to be nearly tripled to 22 years in prison. The appeals court, in a 9-6 vote, called it legal because the final sentence didn’t go above the maximum recommended sentence.

The court’s decision in White’s case is the latest in the ongoing battle over how federal judges deal with the federal sentencing guidelines and U.S. Supreme Court rulings over what those guidelines mean.

One attorney who specializes in sentencing law believes Clayton’s dilemma could lure the U.S. Supreme Court back into the federal sentencing debate.

“Hopefully, there’s another chapter to be written in this case,” said Mark Harris, a New York-based attorney who filed a friend-of-the-court brief on White’s behalf.

Harris said the current sentencing law “violates our internal sense of right and wrong” when it comes to the law.

“It just doesn’t seem to consistent with fair play,” Harris said. “The basic idea here is you can be acquitted of a crime, but still sentenced as if you committed it.”

A jury found Clayton, now 47, guilty in August 2003 of being the getaway driver for his brother, Jeffery Craig White of Ironton, and an accomplice, Laurie Ann Fischer of El Paso, Texas, after a bank robbery in Maysville, a town of about 9,000 people in northeastern Kentucky, in 2002.

Jeffery White shot and killed himself as sheriff’s deputies closed in after a chase. Fischer, now 48, was convicted on multiple counts of bank robbery and using a gun and sentenced to 25 years in prison.

Roger White, who served as the getaway driver, was acquitted of using a gun, but convicted of bank robbery. U.S. District Judge David Bunning, though, weighed the case and factored the gun charges into White’s final sentence, upping it from eight years to 22.

“That really jacked up his sentence,” Harris said.

White appealed to the U.S. 6th Circuit, but lost that initial bid. He asked the full 15-member court to rehear the case, which produced the Christmas Eve ruling.

Judge Deborah Cook wrote for a nine-member majority that judges may consider facts they consider “more probable than not” in handing down a sentence, even if the jury didn’t find enough evidence to convict.

“White thus is not being ‘sentenced for acquitted conduct’ when White’s sentencing judge takes that conduct into account in determining a sentence for the crime for which White was convicted, as long as the sentence imposed falls within the prescribed law for convicted conduct,” Cook wrote.

Judge Gilbert Merritt, writing for the six dissenters, said there were two reasons White’s sentence shouldn’t have been increased, including that a judge essentially found him guilty of the gun charges, not a jury.

“Second, and more broadly, the use of acquitted conduct to punish is wrong as a matter of statutory and constitutional interpretation and violates both our common law heritage and common sense,” Merritt wrote.

The practice of using unproven charges to enhance a sentence is barred by nearly every state, but is permissible in federal courts. The U.S. Supreme Court dealt with a similar issue in 2005, ruling that considering acquitted conduct at doesn’t violate the Constitution’s prohibition against double-jeopardy. But, they didn’t take up the issue raised by White over whether a jury has the final say over what constituted criminal conduct in a case.

“It’s quite frequent that this happens,” Harris said. “It’s not always as dramatic as it is in this case. It’s kind of shocking.”

White’s attorney, Kevin Schad of Ohio, said the case will be appealed to the U.S. Supreme Court.

“I believe Americans would be shocked to hear that an acquittal means nothing in the federal system,” Schad said.

Kyle Edelen, a spokesman for the U.S. Attorney’s office in Lexington, which prosecuted White, did not return a Christmas Eve message seeking comment. The office was closed on Friday.

Harris said the case likely won’t end with the 6th Circuit’s opinion.

“The U.S. Supreme Court is going to have to address this, possibly even with this case,” Harris said.

But, unless or until it does, White will stay in the Forrest City Federal Correctional Institute in Forrest City, Ark. He’s eligible for release in 2021, when he’ll be 60-years-old.