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January 13, 2022

Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?

The question in the title of this post came to mind when I saw just the latest example of a federal circuit court upholding a lengthy federal sentence based in part on acquitted conduct.  This  latest example was handed down yesterday by a Seventh Circuit panel in US v. McClinton, No. 20-2860 (7th Cir. Jan 12, 2022) (available here), and here are the basics (with cites removed):

After transfer to adult court ([Dayonta] McClinton was three months away from his eighteenth birthday at the time of the robbery), a jury found McClinton guilty of robbing the CVS in violation of 18 U.S.C. § 1951(a); and brandishing a firearm during the CVS robbery in violation of 18 U.S.C. § 924(c)(1)(A)(ii).  The jury found him not guilty of the indicted crimes of robbery of Perry, in violation of 18 U.S.C. § 1951(a), and causing death while using a firearm during and in relation to the robbery of Perry, in violation of 18 U.S.C. § 924(j)(1).  At sentencing, the district court concluded, using a preponderance of the evidence standard, that McClinton was responsible for Perry’s murder.  The district court judge therefore enhanced McClinton’s offense level from 23 to 43, but also varied downward to account for McClinton’s age and the sentences of his co-defendants, ultimately sentencing him to 228 months in prison.....

The Supreme Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”....  Despite this clear precedent, McClinton’s contention is not frivolous. It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations....

But despite the long list of dissents and concurrences on the matter, it is still the law in this circuit — as it must be given the Supreme Court’s holding — that a sentencing court may consider conduct underlying the acquitted charge, so long as that conduct has been found by a preponderance of the evidence. Until such time as the Supreme Court alters its holding, we must follow its precedent.  McClinton’s counsel advocated thoroughly by preserving this issue for Supreme Court review....

In this case Perry’s murder clearly occurred in the course of the planned robbery. Dividing up the proceeds of the robbery was part and parcel of the plan to obtain cash and drugs for the perpetrators. The fact that, in order to avoid detection, the group traveled a safe distance away from the CVS and waited a few minutes to divvy up the drugs and cash, does not sever its connection to the crime. It was Perry’s announcement that he intended to keep the stolen drugs for himself that drew McClinton’s ire. And it was owing to the prior decision of McClinton, Perry, and others to arm themselves for the robbery that ensured McClinton had a firearm at the ready to settle the dispute by shooting Perry. There is no doubt that under Watts, the murder was relevant conduct that could be used to calculate McClinton’s sentence.

Because less than 3% of all federal sentences are imposed after trials (the rest are after pleas), and because there many not be split verdicts in all those trials, there may only be a few hundred federal cases each year in which acquitted conduct sentencing is even possibly an issue. But often the stakes in those cases can be high with acquitted conduct pushing up guideline ranges many years or even decades as in this McClinton case.  (The upcoming Elizabeth Holmes case could have a lot turn on acquitted conduct, though I suspect the feds might not press guideline enhancements quite so hard in such a high-profile setting.) 

And, of course, acquitted conduct guideline enhancements have be pushing up federal guideline ranges for 30+ years now.  So, I suspect tens of thousands of years of federal prison time has been imposed based on acquitted conduct.  But I wonder if anyone has tried to do more than this back-of-the-envelope calculation.

January 13, 2022 at 06:00 PM | Permalink


How about ghost drug amounts?

Posted by: steve | Jan 13, 2022 9:53:41 PM

It would be one thing if "acquitted conduct" meant conduct the jury determined the defendant didn't do. But it doesn't meant that. I went through this in a short post on C&C a little more than a year ago, so I'll just repeat that here:

For years, the defense bar and legal academia have been pounding their chests about how grossly unconstitutional it is for a defendant to be sentenced in part based on conduct for which he was acquitted. And as is often the mantra with these people, they are always on the cusp of victory (see, e.g., the constant chipper refrain that “the death penalty is dying” notwithstanding that the country has pretty steadily had an execution every 16 days for the last five years).

Today, the Supreme Court (without a single dissent so far as I can tell) rejected the latest effort to get it to ban district courts from basing sentencing on acquitted conduct, LUDWIKOWSKI V. UNITED STATES, No. 19-1293.

To someone who knows no law, it might indeed seem unfair that a defendant could be sentenced based on conduct for which the jury acquitted him. But for everyone else, there is no puzzle here. An acquittal does not mean “the defendant didn’t do it.” It means only that the state failed to meet its burden of proof for conviction, to wit, that every element of the offense be proven beyond a reasonable doubt. But that highest of all standards has never been applied to sentencing. With a few exceptions not relevant here, the burden of proof at sentencing has always been a preponderance of the evidence. It is therefore neither mysterious, nor unconstitutional, nor unfair, for the court to determine, by the standard appropriate to sentencing, that the defendant committed an act that for which the jury was unable to find him responsible by the markedly higher standard required for conviction. See, for comparison, the OJ Simpson case, in which the criminal jury entered an acquittal but a civil jury found Simpson responsible for the murders and liable to the estates of the people he killed.

Not only is the existing state of sentencing law consistent with the Constitution, it’s also consistent with the relentless defense bar refrain (with which I largely agree) that the defendant’s sentence should be based on all the relevant facts about his life and behavior. To the defense, this means all the good things about him — for example, that he loves his mother, played sports in school, and didn’t pull his first hold-up until he was almost 16. But “all relevant facts” means “all relevant facts,” not just those that reflect well on him. If he’s spent years as the neighborhood bully, constantly associates with drug pushers, and at age 27 has never held a job, those things too are relevant to how the sentencing court should view him. But none of these quite illuminating facts is found, or has ever thought to be needed to be found, beyond a reasonable doubt.

The defendant’s cert petition in Ludwikowski is here. The government’s brief in opposition is here.

Posted by: Bill Otis | Jan 13, 2022 10:40:45 PM

We could always go to the Scottish model where the jury can explicitly find that the defendant is in fact not guilty of the charged offense. Under what we have in the US it would actually make much more sense to call the two states "proved" and "not proved".

Of course, I also believe that a hung jury should be an outright acquittal, that the state should get one attempt to convince a jury that the defendant did in fact commit the charged offense and that failure to do so terminates jeopardy.

Posted by: Soronel Haetir | Jan 14, 2022 1:47:24 AM

Well let's start at the beginning of this problem. Ghost amounts of anything shouldn't trigger any arrest nevermind a sentence. The Federal Gov. needs to do their job and not take a shortcut by taking the word of a "unreliable witness" especially one looking for a "downward departure" I still cannot fathom that in this year, 2022, they are still forcing people to plead guilty (because going to trial they will receive decades more in prison-guaranteed) with the only evidence against them is a unreliable spoken drug amount they were "seen with" this is so disgusting that I struggle to even fathom that anyone thinks this is okay, unless your a Federal Prosecutor which, I have no doubt, have no souls or moral compass. This must be fixed and I won't even bring up the slapping these people with enhancements that were put on the books for Cartel leaders or the Mafia. The Federal Government is stomping on this country's citizens rights every single day and no one cares till it happens to them or their child and then, it's too late. You are visiting them in a Federal prison for the next ten years.
It's very frustrating seeing advocacy groups concentrating on other issues when this is the biggest issue of them all. Prosecuting and sentencing people to decades without evidence. (I'm not talking about 5 years, I'm talking about 15-40 years in prison, some for life.) #Ghostdope

Posted by: Carl | Jan 14, 2022 6:05:36 PM

Civilized countries don't incarcerate people based upon criminal conduct that they aren't convicted of. To claim that the U.S. federal courts are not doing that is sophistry.

The fact that U.S. federal courts do this undermines the legitimacy of the U.S. criminal justice system as a whole. This is very costly indeed.It leads whole communities to decline to cooperate with law enforcement which helps to create a safe space for criminals and puts the lives of cops at risk.

It also undermines the "soft power" of the United States in foreign affairs and even in military campaigns, because it strips us of the cloak of being a "white hat" nation that respects human rights and legal system "best practices." In a very real sense, this undermines our national security and encourages anti-U.S. international terorism.

Posted by: ohwilleke | Jan 19, 2022 6:13:14 AM

"Civilized countries don't incarcerate people based upon criminal conduct that they aren't convicted of."

That is a remarkably simple-minded take on it. There is typically a pretty broad sentencing range, and the judge can elect where in the range the the specific sentence should be.

In making that decision, it's nothing but common sense to look at the defendant's entire life, the good stuff and the bad. None of it has to be proved BRD; the standard of proof at sentencing is and always has been different and lower. There's a better argument that it would be uncivilized, not to mention stupid, to FAIL to look at the whole of the defendant's conduct in imposing sentence.

P.S. Could you point to a "civilized" country that does NOT take into account the defendant's whole record in deciding where, within a designated range, the sentence should be pegged? England? Canada? Germany? I don't know of any, but I'm always eager to learn new things.

Posted by: Bill Otis | Jan 20, 2022 1:37:42 PM

Those are the real facts an idea you don’t know the law they will book you an rail road you

Posted by: Kelvin Speight | Mar 31, 2022 8:41:38 PM

My sentence was enhanced from a range of 15 to 21 months to 235 to 293 months based on acquitted and uncharged conduct. I understand the court should look at all relevant information but they should not use this to determine your guidelines range. Rather this should be used to determine where to sentence you within the guidelines range or to determine whether to give you a variance but it should UK don't be used to determine the starting point itself.

Posted by: Michael rinaldi | Jul 2, 2022 9:29:23 AM

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