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December 28, 2022

Fingers crossed that SCOTUS might review acquitted conduct sentencing enhancements

Regular reader may vaguely recall some of my prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As I have detailed in posts months ago (and linked below), over the summer I had the pleasure of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue 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.)

After various delays, it appears that this case will finally be considered at next week's SCOTUS conference.  And that reality likely account for this new AP article headlined "Supreme Court asked to bar punishment for acquitted conduct."  Here are excerpts:

A jury convicted Dayonta McClinton of robbing a CVS pharmacy but acquitted him of murder. A judge gave McClinton an extra 13 years in prison for the killing anyway. In courtrooms across America, defendants get additional prison time for crimes that juries found they didn’t commit.

The Supreme Court is being asked, again, to put an end to the practice. It’s possible that the newest member of the court and a former federal public defender, Justice Ketanji Brown Jackson, could hold a pivotal vote. McClinton’s case and three others just like it are scheduled to be discussed when the justices next meet in private on Jan. 6.

Sentencing a defendant for what’s called “acquitted conduct” has gone on for years, based on a Supreme Court decision from the late 1990s. And the justices have turned down numerous appeals asking them to declare that the Constitution forbids it.

The closest the court came to taking up the issue was in 2014, when Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg provided three of the four votes necessary to hear an appeal.... Scalia and Ginsburg have since died, and Thomas remains on the court. But two other justices, Neil Gorsuch and Brett Kavanaugh, have voiced concerns while serving as appeals court judges.

I am hopeful, but still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing.  If enough Justices are sincerely committed to orignalist principles, perhaps this issue will get to the Court's docket this coming year.  But I am certainly not holding my breath. 

A few recent of many, many prior related posts:

December 28, 2022 at 02:14 PM | Permalink


I, for one, am very hopeful (while grounded in reality) that the Supreme Court opts to finally address the issue of acquitted conduct. Nothing could be more un-democratic than punishing a person for an offense that: (a) they have never been charged; (b) that has been dismissed (if charged); or (c) for which they have been acquitted. This concept is completely antithetical to every principle on which a democratic society stands.

The average person does not quite understand exactly 'what' this process looks like as far as the toll that I takes on the system and society as a whole. My eyes have seen its devastating consequences on many levels.

It reminds me of the comments of the late Justice Scalia when alluding to a relative topic in Blakely v. Washington:

"Any evaluation of Apprendi's 'fairness' to criminal defendants must compare it with the regime it replaced, in which a defendant, with no warning in either his indictment or plea, would routinely see his maximum potential sentence balloon from as little as five years to as much as life imprisonment, see 21 U.S.C. §§ 841(b)(1)(A), (D), based not on facts proved to his peers beyond a reasonable doubt, but on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong. We can conceive of no measure of fairness that would find more fault in the utterly speculative bargaining effects JUSTICE BREYER identifies than in the regime he champions. Suffice it to say that, if such a measure exists, it is not the one the Framers left us with."

While Blakely did not specifically address the issue of acquitted conduct, it paralleled the unconstitutionality of a procedure in which a judge is allowed to sentence a defendant for facts that the are the functional equivalent of a new offense if those facts are proven by a mere preponderance of the evidence. This procedure involves no less violence and produces no less carnage and havoc than the person who decides to kidnap a governor because they are dissatisfied with the governor's politics or one who decides to storm the U.S. Capital and place lawmakers and civilians at risk because they are dissatisfied with the result of an election.

We are not a banana republic, we are the United States of America. So hopefully the Supreme Court grants certiorari in this case and ends this bottomlessly cruel and un-democratic procedure.

Posted by: Eric A. Hicks | Dec 29, 2022 9:03:26 AM

This is a very complicated situation. It will be interesting to see what happens.

Brief is a little over the top.

Posted by: federalist | Dec 29, 2022 11:37:35 AM

The situation isn't complicated at all. The Due Process Clause of the Fifth Amendment requires that all crimes be proven beyond a reasonable doubt in a criminal proceeding.

Posted by: Eric A. Hicks | Dec 29, 2022 1:25:32 PM

You could have inconsistent jury verdicts. Or let's say, just for argument, that you have a mugging with a gun--defense is that the gun "just went off", and jury acquits of murder, do you really think that the Fifth Amendment bars the judge from taking into consideration the fact that death resulted from the mugger's volitional acts.

Take a look at the Rae Carruth case--the sentencing judge wouldn't have been allowed to take the death of Cherica and the profound injury to the unborn child?

And Apprendi remains, to this day, the least controversial 5-4 decision ever.

Posted by: federalist | Dec 29, 2022 1:41:05 PM

Doug, I'd be interested in your thoughts about how the "acquitted conduct" would apply to the Rae Carruth case.

Posted by: federalist | Dec 29, 2022 2:21:31 PM

I would need to see a complete accounting of the jury verdicts and evidence presented at trial and at sentencing to opine on that case, federalist. I share your view that “acquitted conduct” rules are challenging to sort out. But, as some state courts have held, I think there have to be some constitutional limits. We will see if SCOTUS is finally ready to grapple with this important matter.

Posted by: Doug B | Dec 29, 2022 2:26:34 PM

I think that acquitted conduct sentencing should generally be ok, but that the judge has to give a convincing explanation of why . . . . yeah, LOL, needs some work.

Posted by: federalist | Dec 29, 2022 2:53:23 PM

Here's something that your readers may find interesting:


Posted by: federalist | Dec 29, 2022 3:29:47 PM

Trying to understand this statement, federalist: "acquitted conduct sentencing should generally be ok, but that the judge has to give a convincing explanation of why." Are you saying that or are you saying I am saying that?

Posted by: Doug B | Dec 29, 2022 5:51:55 PM

That's my un-nuanced view . . . .

I haven't developed a well-thought out view.

Posted by: federalist | Dec 29, 2022 5:56:49 PM

There is so much at stake with this ruling. It's complex in some ways and straightforward in others. Precluding the use of acquitted conduct won't neuter district courts. They will still have broad discretion to impose a variance within the prescribed range for the convicted offense if warranted.

Posted by: Eric A. Hicks | Dec 29, 2022 7:57:25 PM

"a mugging with a gun -- defense is that the gun 'just went off', and jury acquits of murder, do you really think that the Fifth Amendment bars the judge from taking into consideration the fact that death resulted from the mugger's volitional acts."

You're conflating two issues -- a type of bait and switch. The fact that a death occurred does not mean that a murder happened. Of course the judge can consider the fact that a death resulted from an offense. What he/she can't do is treat the defendant as if he committed a murder, which is exactly what the cross-reference did in this case. The former is merely considering the nature and circumstances of the offense. The latter should be unconstitutional.

Posted by: DEJ | Dec 29, 2022 9:47:38 PM

Per my comment above, let me re-phrase your comment:

A mugging with a gun -- defense is that the gun 'just went off' -- and jury acquits of murder. Do you really think that the Fifth Amendment bars the judge from taking into consideration that a murder occurred?

Once re-phrased, the answer should be obvious.

Posted by: DEJ | Dec 29, 2022 9:51:42 PM

Your point is excellent DEJ. This is why I don't think the issue is really that complicated. The 'offense conduct' provision of the Guidelines renders a court's consideration of the acquitted murder as a cross-reference unconstitutional in the case of McClinton.

Of course, as you stated, the court can still consider the death. The Supreme Court authorized the court to consider this type of offense conduct in Booker. However, s/he would be considering it as a variance and his/her authority would be constrained by the prescribed statutory maximum of the offense of conviction.

There is still yet another factor that no one has mentioned that I think warrants a brief comment. Recall, that the late Justice Scalia alluded to this procedure in his concurrence in Rita. Specifically, he warned that even under advisory Guidelines, increasing a defendant's sentence based on facts not submitted to nor found a jury's problematic and raised the specter of 'as-applied' challenges to the such sentences because those sentences would only be reasonable for appellate purposes based on the existence of the enhancements.

If indeed the Supreme Court decides to grant certiorari, this will be a very interesting decision and its resonance will be felt far and wide as to the future of how the Guidelines are applied in my opinion.

Posted by: Eric A. Hicks | Dec 29, 2022 10:15:00 PM

The US Sentencing Commission is also considering this - and it's possible on January 12, 2023, they publishing proposed amendments on this one -

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

What I can gather from everyone above is that whether the USSC or the Supreme Court tackles this - the possible ramifications for defendants are huge - even if 18 USC 3661 still exists.

Posted by: atomicfrog | Dec 30, 2022 7:34:10 AM

Helpful reminder of on-going USSC discussions, amtomfrog, that highlights other legal actors can deal with this issue. But note how the framing of the USSC consideration indirectly reveals a complication discussed a bit in Watts. The USSC might write a guideline saying judicial fact-finding about "acquitted conduct" must not be used to increase a guideline range, but it is unclear if the USSC could state in blanket terms that judges are entirely precluded from considering acquitted conduct in light of the statutory instructions in 3553 and 3661. (The bill in Congress to prohibit AC -- which passed the House 405-12 this past year -- is a proposed amendment to 3661.)

Of course, the USSC long ago in § 5H1.10 policy statement stated that "Socio-Economic Status" is "not relevant in the determination of a sentence." Arguably, the USSC could write a similar policy statement that just says AC is "not relevant in the determination of a sentence." But just how judges would operationalize such an instruction in a world of advisory guidelines would be uncertain.

Adding to the challenge, as I see it, is defining the contours of "acquitted conduct" and the possible constitutional foundations for prohibition by courts. I fear these kinds of intricacies in part account for the Watts ruling and the failure of SCOTUS to take up this matter now more than two decades after Apprendi. But the challenge of an issue is not a sound basis for SCOTUS to shirk its constitutional responsibilities. Even if SCOTUS were to take this up and ultimately reaffirm Watts, the attention given to the issue might help Congress and/or the USSC complete actions on this front.

Posted by: Doug B | Dec 30, 2022 10:37:49 AM

Good points Doug - I think there are many issues at play and even if the USSC did in fact add a guideline that prohibits acquitted conduct - I assume it would have to be in the context of the guidelines only. There are other cases and statutes you noted that the court could still use to factor into determining a sentence. I think that is why I agree that the Supreme Court should take up the case.

Posted by: atomicfrog | Dec 30, 2022 12:00:11 PM

How the term 'acquitted conduct' is defined is definitely of paramount importance. Will it be viewed as strictly the offense charged in the indictment for which the defendant was acquitted?

Or, will it be deemed to be: (1) an offense charged in the indictment that was dismissed; (2) an offense charged in the indictment which resulted in a hung jury and mistrial; or (3) an offense under the U.S. Code that was never charged in the indictment but evidence at trial showed was committed in furtherance of the offense of conviction?

The latter appears to be equally important as the former. Otherwise, the presumption of innocence will be rendered toothless if such conduct can be used as a basis to increase the guideline range via the 'offense conduct' provision. I noticed that the bill that failed to pass the Senate had a more limited view of what constituted acquitted conduct. If this view prevails, I worry that we will be having a similar discussion in the years to come about the presumption of innocence.

In the end, the possibilities of how the issue of acquitted conduct will be resolved as it relates to the Sentencing Commission, the Supreme Court and Congress is staggering. For some reason, I have this belief that this will be only another chapter in an ongoing debate.

Posted by: Eric A. Hicks | Dec 30, 2022 12:08:54 PM

Of course a lot depends on the statutory scheme of sentencing, which is why I do not think that one size fits all.

In a guidelines scheme where the target sentence involves calculating enhancements, there is a better argument that acquitted conduct related to the charged offenses should not be used to bump up the guidelines.

But in a fully discretional sentencing system in which the character of the defendant is a consideration, why does the right to a trial by jury and due process bar consideration of only some of the character evidence (that which is unfavorable to the defendant)? I am thinking of a wide array of things that courts routinely consider -- none of which have been proven beyond a reasonable doubt -- like defendant's behavior on prior terms of supervision or during confinement; for sex offenders, test results about propensity to reoffend; counts that were dismissed as part of the plea agreement (with the understanding that barring consideration of such charges might alter plea negotiations); etc.

Posted by: tmm | Dec 30, 2022 12:49:42 PM

Your argument has some appeal from a historic perspective tmm. Court's have historically considered the sort of facts that you alluding to. I don't think that anyone is questioning the court's historic discretion to consider facts of this nature.

But there has to be some sort of constitutional safeguards in such a system. For example, a statutory sentencing range is 5 - 40 years such as the range prescribed under 21 U.S.C. 841(b)(1)(B). What prevents a court from enhancing a defendant's sentence from a range of, say, 51-63 months, to the maximum punishment of 480 months prescribed by the statute?

Posted by: Eric A. Hicks | Dec 30, 2022 1:13:29 PM

Eric - good question - because right now there is nothing right? Say you have your example - range is 51-63 months, but the govt also provides information that the defendant's distribution activities included distribution that resulted in death for 2 individuals. Now, the govt is not able to prove beyond a reasonable doubt, and didn't charge the higher penalty statute, but based upon various 3553(a) factors - could the court not sentence the defendant to 480 months? I think the court can, although I don't know how often that has occurred. Nonetheless, it makes me wonder that maybe there needs to be some additional constitutional safeguards...time will tell.

Posted by: atomicfrog | Dec 30, 2022 2:01:36 PM

Prior to Burrage, the scenario you described did occur more than a few times atomicfrog. Burrage made it somewhat less likely that this would occur because it confirmed that the death results provision of 21 U.S.C. 841(b) was indeed an offense rather than a sentencing factor.

But the more significant point, as you noted, is that it 'can' happen and it 'did' happen. Under the present scheme, the court could exercise its discretion under Booker and 18 U.S.C. 3553(a) and impose an upward variance from the 51 - 63 month range up to the 480 month maximum prescribed by the statute and there would be little to nothing that defense counsel could do. And there is a very strong likelihood that this sentence would be affirmed as substantively reasonable on appeal. Is this ok and, even more importantly, should it be considered constitutional?

Posted by: Eric A. Hicks | Dec 30, 2022 2:18:05 PM

The Fifth Amendment does not foreclose a judge from looking at the consequences of a particular criminal action, which means that the judge, for sentencing purposes, can look at a consequence that a jury acquitted the criminal of intentionally causing. Let's take another example==hate crime acquittal. Let's say that a jury buys a racist's argument that he wasn't motivated by race when he attacked the victim, but while conducting the assault the criminal makes racist comments to the victim, why can't the judge take that into account when assessing how much the victim was violated. Let's say a rape victim is subjected to degrading racial commentary during the rape--why wouldn't it be ok to use that in sentencing?

Posted by: federalist | Jan 3, 2023 9:50:22 AM

You are positing, federalist, facts somewhat similar to those at issue in Apprendi, though there a plea was entered where neither the indictment nor the plea included any reference to the defendant's racial motivation when shooting into his neighbor's house. Under then applicable NJ law, the judge made such a finding by a preponderance and imposed a sentence on an increased statutory range (12 years, when stat max would have been 10 years without the finding). By a 5-4 vote, SCOTUS decided this violated the 5th and 6th Amendments.

Your variation would be set up this way: NJ charges next guy, call him Mr. Bapprendi, with the statutory enhancment of NJ 2C:16-1 ("Bias intimidation") along with other felonies. Jury acquits on that enhancement but convicts on other charges which carry 10 year max. Apprendi makes clear that it violates Constitution to give Bapprendi more than 10, but it sounds like you would be okay with the judge saying something like "For this crime, I'd usually give 6 years, but because I disagree with the jury's view on the facts and also becuase the homeowners said they felt like this was a bias crime, I am going to max you out at 10."

Critically, the McClinton case includes what I consider a worse problem --- guideline rules that demand the judge calculate a starting point and legal benchmark for sentencing that makes the jury acquittal formally and functionally irrelevant --- but I am unsure if you are saying you think that is also okay or if you think this only okay as a matter of judicial discretion or also okay as a matter of formalized (though advisory) sentencing rules.

I call these matters "challenging to sort out" because I especially struggle with the (very real) possibility that there will be cases in which sentencing judges expressly state that they are NOT considering acquitted conduct, but the imposed sentence suggests they likely did. (I consider OJ Simpson's sentencing for stealing "his" Heisman in Nevade state court to be a high-profile example in which a sentencing judge asserted she was not considering prior acquittals, but the sentencing imposed suggested otherwise.)

Posted by: Doug B | Jan 3, 2023 10:58:41 AM

No. I would NOT allow Apprendi to be violated at all. But in my hypo about the racist comments during a rape lead to the judge, in a discretionary scheme, to justifying the max, how can one dispute that as being unconstitutional? And I set a little trap--the jurors didn't find a bias crime, but that doesn't mean that the statements didn't happen, so there's not necessarily going to be a "factual inconsistency." The jury in my hypo could have found that the "because of" requirement wasn't meant--i.e., that the victim wasn't selected due to bias.

Posted by: federalist | Jan 3, 2023 12:27:58 PM

Now you are adding another (important) complication relating to what is "acquitted conduct," federalist, and this could have been a dodge adopted by SCOTUS in Watts. In that case, the statutory enhancment required the gun to be possessed "in furtherence" of the gun crime (which produced an acquittal), but the guideline increase only speaks of possessing a weapon. SCOTUS could have said what the jury rejected was not precisely what the judge found, but the Justices decided to just say there was no constitutional concerns here at all (and did so in a per curiam summary reversal that has laways struck me as a weasally way to deal with an important issue).

My own view would be to say the Constitution demands that sentencing judges must show respect and deference to any and all clear jury findings in order to tightly limit the ability to judges (or guideline systems) to rely directly on jury-rejected facts to enhance sentences. But if/when judge can articulate reasoned and reasonable bases for exercising sentencing discretion that do not disrespect or undermine jury determinations, then I do not see the same constitutional worries in undermining 5th and 6th Amendment values. In close cases, I think appeals courts would have to work through some close calls (eg, the Simpson situation).

In the most simply terms, the question is whether legislatures, sentencing commission and judges have any responsibility to respect clear jury findings at sentencing. Watts essential says that they do not, and I think that has to be wrong. Exactly what is right as a constitutional doctrine is challenging, which is largely why I think legislatures, sentencing commission and judges have been so eager to avoid engaging on this issue. But that very avoidance, as I see it, undermines 5th and 6th Amendment values.

Posted by: Doug B | Jan 3, 2023 1:03:58 PM

I think, and this may be a bit oversimplifying, is a clash between the jury system and a complex criminal law scheme. Some O'Connorian compromise might be in order. I am very sympathetic to the arguments about acquitted conduct and keeping it out of sentencing.

It's very very easy, though, to look at Con law provisions and attack modern government. Criticism of the government is totally protected by the First Amendment, but let's say a drug company decides it wants to get in a rhetorical war with the FDA/CDC--that's bad for business. Does that fact of life violate the First Amendment?

Posted by: federalist | Jan 3, 2023 1:30:02 PM

Not sure why you are turning to the First Amendment, federalist, but I agree that it is always dangeously easy for government bureaucrats to make the case to themselves that the purportedly well-meaning ends justify some constitutionally questionable means. (My sparring with Bill Otis over his bureaucratic invention of appeal waivers are one of many viable examples.)

What has always intrigued me re: acquitted conduct is that Justices Scalia and Thomas (as well as Justices Souter and Ginsburg) seemed very statist on these issues in Watts until Jones and Apprendi finally helped them see how contrary complex sentencing systems can be to our fundamental adversarial procedural values if those process values are not well-policed by courts. The way Scalia makes this point at the end of the Blakely opinion has always been really meaningful to me, as he concedes that Breyer's approach might be "better" but it is not in keeping with our constitutional tradition.

And yet Scalia and others (including his supposed SCOTUS heirs) still were/are content to allow acquitted conduct sentencing to persist years and years after Booker. Sigh.

Posted by: Doug B | Jan 3, 2023 1:57:54 PM

I bring up the First Amendment because it is an analogous issue--the tension between a constitutional guarantee and the realities of the administrative state. Same as the tension between the jury trial right and the use of so-called "acquitted conduct" (which is probably a misleading term) in a modern criminal law scheme. That's probably why Gideon was rightly decided---can you really have a modern criminal justice system where the indigent don't have lawyers? A lawyer probably wasn't a strict necessity in the criminal justice system of 1793. How can one say it isn't a strict necessity now?

Your last sentencing is baffling. Are you saying that the Constitution requires that "acquitted conduct" be thrown out for purposes of sentencing?

Posted by: federalist | Jan 3, 2023 2:37:18 PM

I think Apprendi and Blakely are sound readings of what the Constitution demands with respect to (offense) facts that are used to formally increase sentences in legally-binding sentencing system. I also think that, even in an advisory/discretionary sentencing systemS, the Constitution FURTHER limit how judges can use acquitted conduct functionally to increase sentences. What is baffling about that?

Posted by: Doug B. | Jan 3, 2023 5:47:46 PM

What's baffling is that you seem to make the failure to stop the use of "acquitted conduct" (a misleading term, by the way) as somehow inconsistent with Scalia's views. I don't think that's really right, and what's your proposed constitutional rule?

Posted by: federalist | Jan 4, 2023 8:51:01 AM

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