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July 14, 2022

Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?

Long-time readers know I have long bemoaned the use of so-called "acquitted conduct" to enhance sentencing in the federal system.  My moans have sometimes found expression in amicus briefs in support of efforts to get the Supreme Court to take up this issue, and I surmise any number of defendants have brought this issue to SCOTUS in cert petitions over the last two decades.  But the Justices have persistently declined to take up this issue (though, back in the 2014 Jones case, Justice Scalia joined by Justices Ginsburg and Thomas dissented from the denial of cert on this topic). 

But hope springs eternal, and this month I had the pleasure of working with great lawyers at Squire Patton Boggs to file another amicus brief on this issue, this one in support of petitioner Dayonta McClinton.  I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.

I have a smidge of extra hopefulness for SCOTUS review this time because of the recent transition of Justices.  Justice Breyer, who always opposed the Apprendi/Blakely line of Sixth Amendment cases and always supported broad judicial fact-finding at sentencing, likely was never too keen on this issue.  But Justice Breyer is no longer considering cert petitions, and I am hopeful that his replacement, Justice Ketanji Brown Jackson, might be more inclined to vote for cert on this topic.  (In addition, Justice Kavanaugh expressed concerns about acquitted conduct when on the DC Circuit, and Justice Gorsuch has long expressed strong affinity for jury trial rights.)  And today brought an extra jolt of hopefulness because the Supreme Court officially requested that the Government respond to the cert petition after the Solicitor General had waived its right to file a response.

Because every cert petition is a long shot, I will still going to be keeping my expectations tempered.  But, I do feel fairly confident that the Justices will eventually take this issue up, so I hope they come to see that there is no time like the present.

A few recent of many, many, many prior related posts:

July 14, 2022 at 10:25 PM | Permalink


I understand why this issue has superficial appeal but saying that "the jury found that he didn't do it" is not an accurate statement of the law, at least as I understand it. The only statement that is true, I believe, is "the jury did not find beyond reasonable doubt that the defendant committed the charged offense." Meanwhile, sentencing factors only have to be shown to a more-likely-than-not standard (possibly some to a clear and convincing evidence standard, I don't know).

If that distinction is, in fact, an accurate statement of the lawI don't see how there is anything to complain about.

Note that I would not be at all opposed to adding an actual "not guilty" finding to the jury forms. But for right now that is not what we really have, regardless of what the foreperson announces as the verdict.

Posted by: Soronel Haetir | Jul 14, 2022 11:46:59 PM

Of course, most states do not have jury sentencing. I am not sure what the legal basis is for distinguishing between acquitted conduct and uncharged conduct and conduct that is the basis for charges that are still pending. And if all evidence of prior bad acts is inadmissible unless it resulted in a conviction, I am not sure what the legal basis is for putting on evidence of a defendant's good character while excluding evidence of bad character. Even in the death penalty cases, the Supreme Court has made clear that character is a relevant consideration in sentencing which the sentencer is entitled to hear.

While the court is free to make up whatever legal rules it wants, barring consideration of a defendant's bad character by a sentencer would be a major change to the traditional rules.

Posted by: tmm | Jul 15, 2022 11:11:17 AM

Soronel and tmm, though there is an understandable tendency to consider and conflate acquitted conduct and uncharged conduct and/or to make much of proof standards traditionally used by different fact-finders, my view is that an acquittal by a jury of certain conduct is a special kind of legal, political and social action that must be shown a unique form of respect in our constitutional system. The Supreme Court's recent Ramos ruling, authored by Justice Gorsuch, speaks in a different context to my core concerns here:

"the promise of a jury trial surely meant something — otherwise, there would have been no reason to write it down. Nor would it have made any sense to spell out the places from which jurors should be drawn if their powers as jurors could be freely abridged by statute. Imagine a constitution that allowed a 'jury trial' to mean nothing but a single person rubberstamping convictions without hearing any evidence."

I think the promise of a jury trial must mean that, if and whenever someone is acquitted by a jury of certain conduct, then a judge cannot thereafter sentence a defendant as if that acquittal was entirely inconsequential. To parrot Ramos, can we imagine a constitution that guaranteed a right to a jury trial, but also blessed a statute that ordered a single judge to thereafter sentence the person exactly the same after an acquittal by a jury as if the jury had convicted?

That said, I have long argued that all legally significant offense conduct to be used at sentencing should have to be proven as an "element." So I view uncharged sentencing enhancements as constitutionally and pragmatically problematic. But acquitted conduct sentence enhancement are different in kind and much worse in a system committed to jury trials.

Posted by: Doug B. | Jul 15, 2022 11:54:29 AM

Okay, that's at least an answer. Not one I find convincing but still an answer.

I see a major difference with your rubber-stamp counterexample in that it (at least as presented) doesn't require anything more than the original probable-cause that a particular offense was committed. Acquitted conduct sentencing on the other hand still requires (or is supposed to anyway) proof to a preponderance level.

I have, in the past, presented a system where once convicted the offender would have to prove some reason why they, in particular, should be shown leniency. I would still have no problems were that our system. Once a conviction is obtained my interest in the offender is basically nil. They have shown that they don't care to live in a law-abiding society, I see no reason not to humor that desire.

Posted by: Soronel Haetir | Jul 15, 2022 12:46:57 PM

Just ignoring the critical difference between the standard of proof for a conviction and the different and lower standard required for establishing sentencing facts may feel good, but is not going to result in a successful SCOTUS case.

Of course, if the defense wants to make the argument that, for the first time in American history, sentencing facts must be found BRD, it should go right ahead. How well that argument will fare in a Court that has shown new determination not to read into the Constitution things that aren't there is, ummmmm, a different question.

An acquittal does not mean and has never meant the defendant didn't do it. Very, very often it means it's highly likely he did it, but has not been established to the maximum standard of BRD. And that's all it means.

And there's this too: As we all know, the defense bar is not about to stop if it wins this case. The one to be filed ten minutes later will be that uncharged conduct ALSO can't be used at sentencing -- something, it will tell us, is a mere slight extension of the rationale they're pushing to use the acquitted conduct argument.

The truth is that the defense bar doesn't want ANY CONDUCT AT ALL to be considered at sentencing, because what it's actually seeking is no sentence. Gotta have "healing," dontcha know.

Posted by: Bill Otis | Jul 15, 2022 4:41:04 PM

Soronel and Bill: As you may or may not realize, SCOTUS has never formally said that "proof to a preponderance level" is a constitutional requirement at sentencing. In McMillan v. Pennsylvania, 477 U.S. 79(1986), the Court held simply that "the preponderance standard satisfies due process" in the application of a statutory mandatory minimum, but it also said nothing in that case "would warrant constitutionalizing burdens of proof at sentencing."

Arguably, McMillan could be read to hold there is absolutely no due process constitutional floor for the burden of proof at sentencing --- and thus probable cause or even reasonable suspicion could be the sentencing standard decreed by a legislature. Is that what your are both asserting, namely that the Constitution should be read to place absolutely no procedural rules or limits whatsoever on judicial fact determinations at sentencing?

Of course, contrary to Bill's curious suggestion, many defense folks argued repeatedly that McMillan was wrongly decided and that sentencing facts which trigger a mandatory minimum must be found BRD. The Supreme Court ultimately agreed, in Alleyne v. United States, 570 U.S. 99 (2013) by formally overruling McMillan and holding that the Fifth Amendment BRD proof standard of AND the Sixth Amendment jury trial right applies to any and all facts that "alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment."

Alleyne was authored by Justice Thomas, Bill, so I am surprised you forgot this case when claiming that is unprecedented to assert that certain aggravating sentencing facts have to be proven BRD. Such a claim is not unprecedented; in fact, it is fundamental to the holding in Apprendi and Blakely and Cunningham and Southern Union as well as Allenye (with your fav, Justice Thomas, in the majority in all these cases).

Of course, proof BRD is not actually anywhere in the text of the Constitution. Are you folks inclined to claim that, for all criminal justice purposes and in all criminal justice settings, "proof to a preponderance level" ought to be considered sufficient to satisfy the Due Process Clause even when it comes to convictions? If not, why does it seem sound to read the Constitution to have varying proof standards for criminal justice determinations? I get that you both might, for policy reasons, want punishment imposed based on lower proof standards. But is that real consistent with Constitutional text and Founding era history and tradition in application of criminal laws?

Posted by: Doug B. | Jul 15, 2022 6:22:47 PM

I have enormous problems with SCOTUS rulings saying that sentencing factors have to be shown BRD. To me, once the conviction is obtained with some statutory sentencing range (be even were it a $1 fine to death) that should be the end of any entitlement to having the evidence weighed in the offender's favor. Perhaps, were the guidelines still mandatory, I could see granting more, because then the guideline range is, in fact, part of a statutory sentencing range. But advisory guidelines are not so part of a statutory range.

If the law so allowed, a magistrate could say "I'm sending you to the gallows because my ouija board told me to" and that would satisfy me, so long as the conviction itself is firm. That we choose to give a convict more than that, is - I believe - much more for the comfort of the sentencing official than anything due the offender.

Posted by: Soronel Haetir | Jul 15, 2022 7:19:48 PM

Doug --

You mention Apprendi and Blakely and Cunningham and Southern Union and Allenye but say not a word about the actual controlling case, Watts. How curious.

And you particularly take note of the Jones case from eight years ago, and the dissents from the denial of cert by Scalia, Ginsburg and Thomas, but say not a word about Ludwikowski, in which cert was denied on the identical issue less than two years ago with not a single dissent.

A cynical person might be tempted to think this is a case of selective citation, no?

P.S. It's not really worth a whole lot of disputation at this late date in our Republic that the standard of proof for convictions is BRD, and for sentencing (with rare and specific exceptions) is a preponderance. That law is much, much better settled than Roe ever was.

Posted by: Bill Otis | Jul 16, 2022 8:50:01 AM

Bill, you stated "if the defense wants to make the argument that, for the first time in American history, sentencing facts must be found BRD, it should go right ahead." I was eager to highlight that the argument that certain sentencing facts must be found BRD has been made many times AND the argument has been frequently successful over the last two decades in rulings such as Apprendi and Blakely and Cunningham and Southern Union and Allenye (and I left out Ring and Hurst and a few others).

The 1997 ruling in Watts relied heavily on McMillan. But, as noted above, McMillan was expressly overruled by Allenye. That is among the reasons I have long thought SCOTUS should take this issue up anew (just like you keep hoping they will reconsider Miranda). I am not confident the Justices will anytime soon, but in the wake to 20+ years of jurisprudence (led by Justices Scalia and Thomas) finding more and more "sentencing facts" subject to traditional Fifth and Sixth Amendment criminal justice procedures and protections, the Court ought to explain whether and why the rights in those amendments do or do not protect defendants in a meaningful way at sentencing after a jury acquittal.

Critically, Bill, it is NOT established constitutional law that sentencing fact-finding by judges must be by a preponderance. McMillan (decided 35 years ago) and Watts (decided 25 years ago) held only that due process was satisfied by a legislature or agency rule calling for application of that standard of proof. But the Supreme Court has never directly addressed what serves as a constitutional floor for proof at sentencing (Soronel would seemingly be content with the "ouija board" standard). A few circuits have held or suggested that a "clear and convincing" standard applies at sentencing sometimes. The division and uncertainty on these matters is another reason for SCOTUS to take up this matter ASAP.

Finally, with the Supreme Court is now stressing text, history and tradition as central to constitutional adjudication, I am eager to see and better understand when and how text, history and tradition might support the notion that a civil law standard suffices for proof of (acquitted) crimes to justify aggravation in punishment. When he was back on the DC Circuit, Justice Kavanaugh suggested SCOTUS needed to take up this issue in the wake of Apprendi jurisprudence. I hope he sticks to that view and can get the votes needed for cert.

Posted by: Doug B. | Jul 16, 2022 10:46:34 AM

1. You are correct that my initial statement was too broad. There are (quite) limited circumstances in which a fact pertinent to sentencing must be found BRD. But the run of the mine standard of proof for sentencing facts is a preponderance. Don't believe me? Go down to US District Court and watch a few sentencings.

2. Watts is the governing law until SCOTUS says otherwise. But no SCOTUS case, before Allenye or afterwards, has questioned Watts' continuing authority. The Third Circuit in Ludwikowski explicitly and solely relied on Watts, and when the case got to SCOTUS on a cert petition, not only was there not a single vote to take it; there was not a single sentence from a Justice to the effect, "While this is not an apt vehicle to examine the matter, I would note that, in light of Allenye, the continuing authority of Watts may need to be reexamined." Not one single Justice.

3. In many, many cases, the single most important determinant of the verdict is who wins the suppression motion. But SCOTUS has held explicitly that the burden of proof at a suppression hearing is preponderance, not BRD, Lego v. Twomey, 404 U.S. 477 (1972). That critical holding, like Watts, also has not been questioned.

4. You note, "A few circuits have held or suggested that a clear and convincing' standard applies at sentencing sometimes."

The words "suggested" and "sometimes" are doing a world of work in that sentence. Let's see if I can do as well: "In a few pickup games, I have hit it from 35 feet sometimes." Which is true, but if you want to use that as the basis for your litigating positions, you're going to have some long days in court.

5. I'm glad you see the many virtues of Justice Thomas. Too bad the Left continues to try to smear him (and his wife). He is a man of courage and high intellect and if I had my druthers, he would be the POTUS.

Posted by: Bill Otis | Jul 16, 2022 10:13:27 PM

In reverse order:

5. For many reasons, I would love to see Justice Thomas run for Prez in 2024.

4. Circuits have generally failed to put meat on the bones of sentencing proof standards, because SCOTUS has never done so. Everyone is generally content to treat preponderance as "good enough for government work" even though that proof standard, to my knowledge, finds no support in text, history and traditions of our Constitution.

3. A suppression motion concerns assessing facts for applying the (constitutionally questionable) exclusionary rule. Once courts invent a remedy for constitutional violations to be used in criminal cases, it is hardly surprising that they then invent a proof standard for deciding if this remedy applies. That is a far cry different that the standard of proof for criminal wrongdoing that should allow punishment in our adversarial criminal justice system.

2. Yep, Watts in still "good" law and SCOTUS has turned away repeated challenges with little comment. But, at 25, Watts it is far younger than Miranda, which is also still "good" law and high on your "they should reconsider" list. I am hoping the four Justices who have joined the Court in the last 5 years will be open to taking another look at Watts. I surmise you are hoping the same for Miranda.

1. Any and all facts that legally shift the range of sentences must be proved BRD (or admitted by the defendant). That actually covers a lot of facts, but those are often hashed out in plea deals. That 98% of federal cases get resolved by pleas means that requiring proof BRD for crime facts to enhance a sentence would not be a big deal EXCEPT in those cases in which a defendant denies guilt and a JURY UNANIMOUSLY DECLARES HIM NOT GUILTY. The jury trial right should mean something, and I think that should mean you do not get sentenced for conduct that a jury decided was not adequately proven by the government.

Posted by: Doug B. | Jul 17, 2022 2:47:45 PM

Bill, the Left didn’t need to smear Ginny. Her own texts did (baselessly seeking to thwart the will of the electorate). She is a conspiracy theorist. I respect you and really hope you aren’t. Or does the will of the people only matter when it results in conservative approaches to issues?

Posted by: Anon | Jul 17, 2022 7:56:13 PM

Late to this blog post, but I’d like to note that Florida prohibits extra punishment for acquitted conduct. There are many cases like this one: Doty v. State, 884 So. 2d 547, 549 (Fla. 4th DCA 2004) (“It is a violation of due process for the court to rely on conduct of which the defendant has actually been acquitted when imposing the sentence.”)

Posted by: Paul | Jul 18, 2022 7:55:13 AM


We shouldn’t know anything about her or her texts. They are not newsworthy.

We now know for a fact that Joe lied about his son’s business dealings and liked to take showers with his daughter. The entire media yawns, but a couple of texts from Ginny sends them to their fainting couches.

Posted by: TarlsQtr | Jul 18, 2022 7:41:23 PM

Tarls, her texts are newsworthy. She is a public figure. She is married to a Supreme Court Justice, who could have been called to rule on those claims. She is actively inserting herself into efforts to undermine democracy. That may not be newsworthy to you, but a lot of others would reasonable disagree.

Posted by: Anon | Jul 18, 2022 8:10:23 PM

Was Thomas called to rule on those claims? No, thus not newsworthy and used solely to smear. Her texts had zero impact on public policy as she is not a public servant.

Yet, Ashley Biden’s diary gets a zzzzzzzz. Only the NY Post has shown any interest in Hunter’s laptop, which likely shows criminal acts by Joe and, at the very least, unethical ones.

Posted by: TarlsQtr | Jul 19, 2022 8:48:03 PM

TarlsQtr --

The real reason the Left goes after Ginni Thomas is three-fold: First, they believe a woman should stay in the kitchen and have no professional life of here own; second, they resent that she has a bi-racial marriage, which (amazingly in this day and age) they view as a scandal; and third, they want to send a not-so-subtle warning shot across Justice Thomas's bow that, if he continues to be so uppity in his opinions, he and his family might get a late night visitor just as Justice Kavanaugh and his family did.

Posted by: Bill Otis | Jul 21, 2022 9:14:21 AM

Bill, that is so absurd and over the top. She is a public figure. She is married to a Supreme Court justice. She is a conspiracy theorist. Do you have any evidence for any of your assertions? It sounds like you might be a conspiracy theorist too. I know a lot of people on the Left, and none of these assertions are true for any of them. This does a disservice to your intelligence.

Posted by: Anon | Jul 30, 2022 9:07:09 PM


Hello. My name is Eric Hicks and I was recently released from federal prison under the First Step Act of 2018 after serving 30 years. I was originally sentenced to life.

For several years I have been a proponent of the Supreme Court revisiting the issue of the use of acquitted conduct. Most people who have opinions on the topic, have not lived the horrors of standing before a federal judge and having a sentence imposed for something that was either never charged in an indictment or a crime in which a jury said that you did not commit. The issue is reviewed from a policy standpoint while I tend to view it more from a societal aspect.

My sentence was increased for elements of a crime, viz., drug quantity and leadership elements of 21 U.S.C. 848, that resulted in a hung jury during my trial. These findings substantially increased my base offense level and resulted in a sentencing range of life. I cannot even begin to calculate the damage that this policy wrought upon my family as most of them passed away while I was in prison.

The purpose of this message is to merely thank you for your years of dedication on this issue. Your work was the impetus to me writing work that was published by the University of California's Vera Institute of Justice in 2011. Thank you again for your blog and your passion.



Posted by: Eric Hicks | Nov 1, 2022 10:05:04 AM

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