Making a friendly pitch for SCOTUS to consider constitutional limits on extreme judicial sentencing increase based on uncharged homicide

Regular readers know that I have long been troubled by significant sentence increases by judges based on so-called acquitted conduct, and that I have filed a number of federal appellate briefs articulating my concerns. Building on some of that prior work, I recently had a chance to work on an amicus brief in support of certiorari in Hebert v. US, a case out of the Fifth Circuit involving an extreme sentence increase based on uncharged conduct. The full amicus (which the fine folks at the Jones Day in DC made so fine) can be downloaded below, and here are excerpts from its start providing context and key arguments:

It is difficult to imagine a starker violation of the Sixth Amendment and due process than what transpired below. Mr. Hebert pleaded guilty to a $16,000 fraud that carried a guidelines range topping out at 5 years.  After persuading Mr. Hebert to admit responsibility for his fraud and accept punishment for that crime, the Government ambushed him at sentencing by asserting that he had committed an intentional murder along with the fraud to which he had confessed. The Government then asked the district court to find it was more likely than not that Mr. Hebert committed this un-charged, non-admitted, never-convicted, non-federal crime. Then, on the basis of that judicial determination, the district court gave Mr. Hebert a 92-year sentence — a sentence the Government has conceded and the Fifth Circuit recognized “would have been substantively unreasonable under the post-Booker sentencing regime absent a judicial finding of murder,” Pet.App.22a — again, a crime with which Mr. Hebert has never even been charged.

Because Mr. Hebert has never been charged with — much less convicted of — murder, he remains entirely innocent of that crime. If the Government wishes to convict Mr. Hebert of murder, it is welcome to try.  But what it cannot do is use Mr. Hebert’s confession to lesser crimes as the springboard for de facto convicting him of a far more serious crime in a judicial proceeding with no jury, the civil standard of proof, and none of the criminal justice system’s fundamental rules and procedures....

There are at least two constitutional provisions that, under this Court’s well-established jurisprudence, forbid this inverted regime.  First, this Court has made clear that a criminal defendant has a Sixth Amendment “right to have a jury find the facts behind his punishment.” Hurst v. Florida, 136 S. Ct. 616, 621 (2016).  That right reflects the vital role of the jury as the “circuitbreaker in the State’s machinery of justice” — a role that cannot be “relegated to making a determination that the defendant at some point did something wrong [as] a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306–07 (2004).  The Sixth Amendment right to a jury trial is a constitutional protection of “surpassing importance,” Apprendi, 530 U.S. at 476, yet the decision below makes a mockery of it....

Second, this Court has long recognized that due process forbids grossly unfair procedures when a person’s liberty is at stake. Specifically, this Court has indicated that (1) judges are sometimes limited from imposing distinct new punishments based on “a new finding of fact that was not an ingredient of the offense charged,” Specht v. Patterson, 386 U.S. 605, 608 (1967) (citation omitted); (2) the “safeguards of due process” in criminal cases are “concerned with substance rather than [any] kind of formalism,” Mullaney v. Wilbur, 421 U.S. 684, 698–99 (1975); and (3) constitutional concerns are raised whenever sentencing findings become “a tail which wags the dog of the substantive offense,” or when the government restructures criminal prosecutions “to ‘evade’ the commands” of the Constitution. McMillan v. Pennsylvania, 477 U.S. 79, 88–89 (1986).

The simple principle that unifies these decisions is fatal to the legal rule embraced below: Due process forbids prosecutors from manipulating the criminal justice system to evade its core protections.  Applied here, that principle barred prosecutors from waylaying Mr. Hebert at sentencing with allegations of a far more serious crime for which he has never been indicted or convicted — allegations that depend, moreover, on evidence which the prosecutors were apparently unwilling to subject to the crucible of a criminal trial or test against the burden of proof they must carry there.  Due process demands more.

Download Berman Amicus in Support of Cert in Hebert