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September 29, 2014

Rooting for acquitted conduct petition grant from SCOTUS long conference

Today, on the first Monday before the first Monday in October, the US Supreme Court Justices meet for the so called "long conference" at which they consider which of the large number of cert petitions that piled up over the summer ought to be heard during the Court's upcoming term. SCOTUSblog this morning here reviews some of the highest profile matters sure to generate the bulk of coverage and commentary.

Of course, I am always hoping/rooting for the Justices to grant cert on any and all sentencing issues. But there is one particular case, Jones v. US coming up from the DC Circuit, in which I filed an amicus in support of cert and thus in which I have a particular interest.  Regular readers of this blog are familiar with this case, which concerns judicial fact-finding to increase a federal guideline sentence contrary to a jury acquittal. (In prior posts (some of which appear below), I stressed the sentence given to one of the co-defendants in this Jones case, Antwan Ball.)

Over at SCOTUSblog, Lyle Denniston provided this effective review of the case and the SCOTUS filings a few weeks ago, and I encourage readers to check out that post or my prior posts linked below for context and background.  Here I will be content to provide this link to the cert petition and this link to my amicus brief in support of cert, as well as these paragraphs from the start of my amicus brief:

Sentencing rules permitting substantive circumvention of the jury’s work enables overzealous prosecutors to run roughshod over the traditional democratic checks of the adversarial criminal process the Framers built into the U.S. Constitution.  When applicable rules allow enhancement based on any and all jury-rejected “facts,” prosecutors can brazenly charge any and all offenses for which there is a sliver of evidence, and pursue those charges throughout trial without fear of any consequences when seeking later to make out their case to a sentencing judge.  When acquittals carry no real sentencing consequences, prosecutors have nothing to lose (and much to gain) from bringing multiple charges even when they might expect many such charges to be ultimately rejected by a jury.  Prosecutors can overcharge defendants safe in the belief they can renew their allegations for judicial reconsideration as long as the jury finds that the defendant did something wrong.  Indeed, piling on charges makes it more likely that the jury will convict of at least one charge, thus opening the door for prosecutors to re-litigate all their allegations before the judge.  Under such practices, the sentencing becomes a trial, and the trial becomes just a convenient dress rehearsal for prosecutors....

The Petitioners contend, as several Justices have already observed, that the Sixth Amendment is implicated whenever a legal rule (in this case, substantive reasonableness review) makes judge-discovered facts necessary for a lengthy sentence.  Amicus further highlights that this case presents the narrowest and most troubling instance of such a Sixth Amendment problem — namely express judicial reliance on so-called “acquitted conduct” involving jury-rejected, judge-discovered offense facts to calculate an enhanced Guideline sentencing range and thereby justify an aggravated sentence.  By allowing prosecutors and judges to nullify jury findings at sentencing such as in the case at bar, the citizen jury is “relegated to making a determination that the defendant at some point did something wrong,” and the jury trial is rendered “a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely, 542 U.S. at 306-07.

Though various forms of judicial fact-finding within structured sentencing systems may raise constitutional concerns, this case only concerns the uniquely serious and dangerous erosion of Sixth Amendment substance if and when Guideline ranges are enhanced by facts indisputably rejected by the jury.  It may remain possible “to give intelligible content to the right of a jury trial,” Blakely, 542 U.S. at 305-06, by allowing broad judicial sentencing discretion to be informed by Guidelines calculated based on facts never contested before a jury.  But when a federal judge significantly enhances a prison sentence based expressly on allegations indisputably rejected by a jury verdict of not guilty, the jury trial right is rendered unintelligible and takes on a meaning that could only be advanced by a Franz Kafka character and not by the Framers of our Constitution.

Previous related posts on this case and acquitted conduct sentencing enhancements:

September 29, 2014 at 09:49 AM | Permalink


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You should also include Cato and the Rutherford Institute's amicus brief, which may be found here:


Posted by: Justin Sadowsky | Sep 29, 2014 12:49:58 PM

lol last time I looked no so-called "sentencing rule or even Law" trumps constitution and we don't need those screw up's on the bench to look at this. Sorry anyone with a 5th grade understanding of the United States Of America's Constitution and Law knows using aquitted or unconvicted charges to do ANYTHING to a defendant is illegal and unconstitutional and not only does the judge and da involved not belong in the position they have but they pretty much don't belong on this world either. They have proven just too DAMN STSUPID to live.

Posted by: rodsmith | Sep 29, 2014 4:04:41 PM

Doug, your argument makes sense if you assume that the problem is simply a crime. But the problem continues to unfold as more and more information becomes available. Not only is it a crime, but is is also an offense. Crimes are wrong, offenses are bad. What's more the commission of a criminal offense is evidence that the person in question has a risk of committing another criminal offense.

What do the guidelines encompass?

Posted by: Tom McGee | Sep 29, 2014 11:31:32 PM

doesn't matter tom if it's info about a charge that was not prosecuted or was prosecuted and the jury tossed it. It's illegal and unconstitutional to use it to do shit to the individual.

Posted by: rodsmith | Sep 30, 2014 12:16:03 AM

This post reminds me of the "Juror Number Six" letter from 2009, where one of the people was appalled, when after sitting on the jury for 8 months, carefully sifting through the case...convicting for some counts, and acquitting for others...only to find the defendants pretty much sentenced for ALL counts. "What was the point of us being here?" he wondered. The letter has always left an impact on me...and can be found here: http://www.talkleft.com/story/2009/5/7/155357/8910/lawrelated/Juror-Complains-to-Judge-About-Sentencing-for-Acquitted-Conduct

Posted by: folly | Sep 30, 2014 7:22:43 AM

Do you think they will overturn Watts or have to do so in order to invalidate acquitted conduct sentencing?

- law clerk

Posted by: Mark | Sep 30, 2014 9:30:14 AM

I don't get the argument that we have to disallow it because of the effect on prosecutor's choice.

Ultimately using acquitted conduct is no different than allowing a civil suit after acquittal. Both require only a preponderance of the evidence burden instead of beyond a reasonable doubt. And the acquittal still has meaning since that is now an offense he can't be sentenced on. It essentially decreases the maximum possible because it doesn't allow the possibility of consecutive sentences. Further it is one less conviction on the defendant's record if he later commits another crime affecting the guidelines.

I just don't see a difference between acquitted conduct, non charged conduct, an non criminal conduct that would still tend to show a propensity to commit crimes in the future.

Posted by: Matt | Sep 30, 2014 12:07:34 PM


Juries decide whether the defendant committed a crime, not an offense. We penalize people who commit crimes; punish people who commit criminal offenses. Penalties and punishments have different kinds of objectives. Yes, there is a difference between the death penalty, and capital punishment.

Posted by: Tom McGee | Sep 30, 2014 1:06:11 PM

Conceptually I agree with Doug but in my view the whole debate is like asking what color of lipstick one prefers on the pig. The fact is that acquitted conduct is just the excuse. If you take away AC then the judge will just find a different excuse to give the defendant the same sentence. So long as the sentence is within the guidelines who cares what shade of lipstick the pig has? S0 long as there is some lipstick--can't offend anyone now can we--the shade of it should matter.

Posted by: Daniel | Sep 30, 2014 1:22:53 PM


"the shade of it should NOT matter."

Posted by: Daniel | Sep 30, 2014 1:23:47 PM


So which aspects of the problem are covered by the guidelines? Crime, offense, risk? I agree, this whole thing is kind of stupid. We're talking about the duration of a sentence, and ignoring the level of its restraints. How about requirements and takings?

Lawyers have a tendency to dumb down problems.

Posted by: Tom McGee | Sep 30, 2014 2:40:17 PM

well First Matt I don't thing the so-called "civil" shit following a criminal trial is legal either. You don't get two bits at the fucking apple. If you couldn't get a damn conviction in a criminal trial with a higher standard you don't then get to walk into a so-called civil court and then convict someone on something they were found NOT guilty in a criminal one. Sorry that's a non-starter and grounds for summary execution for anyone involved as far as I'm concerned.

as for you tom. sorry but again bullshit juries in this country decide guilt or innocence. You don't like it. change the constitution. Sorry but again if they have not been charged or convicted of it. Legally in this country as far as that damn individual is concerned. IT DID BOT HAPPEN. Therefore any gov't fucktard who uses it against anyone is a traitor to their oath of office and can now legally be removed from this planet.

Posted by: rodsmith | Oct 1, 2014 1:34:53 AM


Yep, that's right. Juries decide on guilt and innocence; I.e., was a crime committed. But judges decide whether that crime was an offense.

Posted by: Tom McGee | Oct 2, 2014 12:03:57 AM

I can tell your a lawyer tom. must be a good one as dense as you are. The judge is legally and constitutionally only allowed to sentence based on the jury's decision of GUILTY. Sorry but anything not charged at all or found not-guilty by the jury is now out of bounds PERIOD. No matter what those useless fuckups on the high court seem to thing. Sorry they proved they have no fucking clue once they managed to creatively interpet "NO" to mean "not quite NO"

Posted by: rodsmith | Oct 2, 2014 3:26:07 PM

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