Petition for Writ of Certiorari — Miguel Cabrera-Rangel, Petitioner v. United States

Supreme Court briefNov 19, 2018

Ask Donna

What actually matters in this document.

Text

No. 18-___

IN THE

MIGUEL CABRERA-RANGEL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Marjorie A. Meyers

FEDERAL PUBLIC

DEFENDER

SOUTHERN DISTRICT OF

TEXAS

Kathryn Shephard

ASSISTANT FEDERAL

PUBLIC DEFENDER

440 Louisiana Street

Suite 1350

Houston, TX 77002

Jeffrey L. Fisher

Counsel of Record

Pamela S. Karlan

Leah M. Litman

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

(650) 724-7081

jlfisher@stanford.edu

QUESTION PRESENTED

Whether, or under what circumstances, the Sixth

Amendment right to jury trial prohibits a federal court

from basing a criminal defendant’s sentence on a

charge for which the jury acquitted him.

TABLE OF CONTENTS

QUESTION PRESENTED........................................... i

TABLE OF AUTHORITIES ....................................... iii

PETITION FOR A WRIT OF CERTIORARI ..............1

OPINIONS BELOW .....................................................1

JURISDICTION ...........................................................1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS .......................................1

INTRODUCTION .........................................................2

STATEMENT OF THE CASE .....................................3

REASONS FOR GRANTING THE WRIT ...................8

I. Sentencing based on acquitted conduct

presents a vexing and persistent problem

that warrants this Court’s review .........................8

II. The decision below is fundamentally wrong .......13

A. The Sixth Amendment precludes

judges from using acquitted conduct to

increase a criminal defendant’s

sentence .........................................................13

B. Vindicating the right to jury trial is

compatible with the realities of modern

sentencing ......................................................19

III. This case is an ideal vehicle for resolving

the question presented ........................................23

CONCLUSION ...........................................................26

APPENDIX A, Opinion of the United States

Court of Appeals for the Fifth Circuit .................1a

APPENDIX B, Transcript of Sentencing

Hearing before the United States District

Court for the Southern District of Texas ............4a

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...................................... passim

Batson v. Kentucky,

476 U.S. 79 (1986) ................................................18

Blakely v. Washington,

542 U.S. 296 (2004) .............................. 7, 13, 14, 22

BMW of N. Am., Inc. v. Gore,

517 U.S. 559 (1996) ..............................................12

Browning-Ferris Indus. v. Kelco Disposal,

492 U.S. 257 (1989) ..............................................12

Cunningham v. California,

549 U.S. 270 (2007) .............................................22

Duncan v. Louisiana,

391 U.S. 145 (1968) .................................... 8, 13, 15

Gall v. United States,

552 U.S. 38 (2007) .................................... 19, 22, 25

Hohn v. United States,

524 U.S. 236 (1998) ..............................................12

Jones v. United States,

135 S. Ct. 8 (2014) ........................................... 3, 10

Jones v. United States,

526 U.S. 227 (1999) ..............................................15

Molina-Martinez v. United States,

136 S. Ct. 1338 (2016) ..........................................20

North Carolina v. Pearce,

395 U.S. 711 (1969) ..............................................20

Peugh v. United States,

569 U.S. 530 (2013) ..............................................20

Riley v. California,

134 S. Ct. 2473 (2014) ..........................................17

Ring v. Arizona,

536 U.S. 584 (2002) ..............................................22

Rita v. United States,

551 U.S. 338 (2007) ........................................ 22, 23

Rosales-Mireles v. United States,

138 S. Ct. 1897 (2018) ..........................................18

Thompson v. Utah,

170 U.S. 343 (1898) ..............................................15

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) ...................... passim

United States v. Bolton,

No. 17-60502, 2018 WL 5603038 (5th Cir.

Oct. 26, 2018) ................................................... 9, 21

United States v. Booker,

543 U.S. 220 (2005) ...................................... passim

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) .................... 11, 18, 19

United States v. Chandler,

732 F.3d 434 (5th Cir. 2013) ................................22

United States v. Dewitt,

304 Fed. Appx. 365 (6th Cir. 2008) .......................9

United States v. DiFrancesco,

449 U.S. 117 (1980) ..............................................14

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) ...................... 11, 12

United States v. Gobbi,

471 F.3d 302 (1st Cir. 2006) ................................12

United States v. Grace,

640 Fed. Appx. 298 (5th Cir. 2016) .......................9

United States v. Hernandez,

633 F.3d 370 (5th Cir. 2011) ..................................8

United States v. Ibarra-Luna,

628 F.3d 712 (5th Cir. 2010) ..................................6

United States v. Jackson,

390 U.S. 570 (1968) ..............................................20

United States v. Jackson,

No. 16-17119, 2018 WL 4492376 (11th Cir.

Sept. 19, 2018)......................................................21

United States v. Martinez-Romero,

817 F.3d 917 (5th Cir. 2016) ..................................6

United States v. Medina-Cervantes,

690 F.2d 715 (9th Cir. 1982) ................................21

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007) .................... 11, 12, 17

United States v. Moment,

No. 17-3149, 2018 WL 4847082 (6th Cir.

Oct. 5, 2018) .........................................................21

United States v. Papakee,

573 F.3d 569 (8th Cir. 2009) ..................................9

United States v. Pimental,

367 F. Supp. 2d 143 (D. Mass. 2005)............. 17, 21

United States v. Rhine,

637 F.3d 525 (5th Cir. 2011) ................................25

United States v. Sabillon-Umana,

772 F.3d 1328 (10th Cir. 2014) ............................11

United States v. Scott,

437 U.S. 82 (1978) ................................................14

United States v. Shahid,

486 Fed. Appx. 915 (2d Cir. 2012) .........................9

United States v. Singh,

877 F.3d 107 (2d Cir. 2017) .................................22

United States v. Watts,

519 U.S. 148 (1997) (per curiam) ................ passim

United States v. Wendelsdorf,

423 F. Supp. 2d 927 (N.D. Iowa 2006) ................21

United States v. White,

551 F.3d 381 (6th Cir. 2008) (en banc).. 2, 8, 11, 19

Williams v. New York,

337 U.S. 241 (1949) ..............................................19

Yeager v. United States,

557 U.S. 110 (2009) ..............................................14

Zant v. Stephens,

462 U.S. 862 (1983) ..............................................20

Constitutional Provisions

U.S. Const., amend. IV ...............................................17

U.S. Const., amend. V, Double Jeopardy

Clause ............................................................... 2, 12

U.S. Const., amend. V, Due Process Clause ..............12

U.S. Const., amend. VI ...................................... passim

U.S. Const., amend. VIII ............................................12

Statutes

18 U.S.C. § 111(a)(1) ....................................................3

18 U.S.C. § 111(b) .........................................................3

Sentencing Reform Act of 1984, 18 U.S.C.

§ 3551 et seq. ..................................................... 1, 2

18 U.S.C. § 3553(a)(4) ..........................................19

18 U.S.C. § 3661 ....................................... 1, 2, 4, 10

28 U.S.C. § 1254(1) .......................................................1

vii

United States Sentencing Guidelines Manual

U.S.S.G. § 1B1.3 ................................................. 2, 4

U.S.S.G. § 1B1.4 .....................................................2

U.S.S.G. § 2A2.2 .....................................................5

U.S.S.G. § 2A2.4 .....................................................5

U.S.S.G. § 2A2.4(b)(2) ............................................5

Other Authorities

Bishop, Joel P., Criminal Procedure (2d ed.

1872) .......................................................................7

Black’s Law Dictionary (10th ed. 2014).....................14

Blackstone, William, Commentaries on the

Laws of England (1769) .......................................16

Gertner, Nancy, A Short History of American

Sentencing, 100 J. Crim. L. & Criminology

691 (2010) .............................................................15

Goebel, Julius, Jr. & T. Raymond Naughton,

Law Enforcement in Colonial New York: A

Study in Criminal Procedure (1664-1776)

(1944) ....................................................................16

Johnson, Barry L., The Puzzling Persistence of

Acquitted Conduct in Federal Sentencing,

and What Can Be Done About It, 49

Suffolk U. L. Rev. 1 (2016)...................................18

Langbein, John H., The Criminal Trial Before

the Lawyers, 45 U. Chi. L. Rev. 263 (1978) ........16

Langbein, John H., The Origins of Adversary

Criminal Trial (Oxford Press ed. 2003)...............16

Levy, Leonard W., The Palladium of Justice

(1999) ....................................................................14

viii

Nagel, Ilene H., Structuring Sentencing

Discretion: The New Federal Sentencing

Guidelines, 80 J. Crim. L. & Criminology

883 (1990) .............................................................15

O’Hear, Michael M., Explaining Sentences, 36

Fla. St. U. L. Rev. 459 (2009) ..............................20

Pildes, Richard H., Avoiding Balancing: The

Role of Exclusionary Reasons in

Constitutional Law, 45 Hastings L.J. 711

(1994) ....................................................................20

Story, Joseph, Commentaries on the

Constitution of the United States (1833) ............13

U.S. Sentencing Comm’n, Quarterly Data

Report (Oct. 22, 2018) ..........................................20

PETITION FOR A WRIT OF CERTIORARI

Petitioner Miguel Cabrera-Rangel respectfully

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Fifth

Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Fifth Circuit (Pet. App. 1a) is unpublished but

appears at 730 Fed. Appx. 227. The district court’s

relevant rulings (Pet. App. 4a) are unreported.

JURISDICTION

The court of appeals issued its opinion on July 9,

2018. Pet. App. 1a. On September 14, 2018, Justice

Alito extended the time within which to file a petition

for a writ of certiorari to and including November 6,

2018. See 18A269. On October 19, 2018, Justice Alito

further extended the filing date to and including

December 6, 2018. Id. This Court has jurisdiction

pursuant to 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Sixth Amendment to the United States

Constitution provides in relevant part: “In all criminal

prosecutions, the accused shall enjoy the right to a . . .

trial, by an impartial jury.”

The Sentencing Reform Act provides in relevant

part: “No limitation shall be placed on the information

concerning the . . . conduct of a person convicted of an

offense which a court of the United States may receive

and consider for the purpose of imposing an

appropriate sentence.” 18 U.S.C. § 3661.

INTRODUCTION

A jury’s acquittal in a criminal case is meant to be

inviolate—an authoritative expression of the

community that the defendant should not be punished

based on particular allegations. At common law,

therefore, a judge could not base a defendant’s

sentence on charges a jury rejected, even if the

acquittal was coupled with a conviction on another

charge. Today, “the overwhelming majority of states”

maintain this prohibition. United States v. White, 551

F.3d 381, 394 & n.5 (6th Cir. 2008) (en banc) (Merritt,

J., dissenting) (collecting authorities).

But the Sentencing Reform Act, and the Federal

Sentencing Guidelines promulgated pursuant to it,

depart sharply from this tradition. They provide “[n]o

limitation” on a federal court’s ability to sentence a

defendant based on allegations a jury has rejected. 18

U.S.C. § 3661; see also U.S.S.G. §§ 1B1.3, 1B1.4. And

in fact, federal district judges now regularly consider

acquitted conduct in setting defendants’ sentences.

In United States v. Watts, 519 U.S. 148 (1997)

(per curiam), the Court held that considering such

conduct does not contravene the Fifth Amendment.

But Watts did not present anything other than a “very

narrow” question “regarding the interaction of the

Guidelines with the Double Jeopardy Clause.” See

United States v. Booker, 543 U.S. 220, 240 n.4 (2005).

In particular, the Court did not consider whether

increasing the defendant’s sentence based on

acquitted conduct transgressed the province of the

jury “in violation of the Sixth Amendment” right to

jury trial. Id. at 240.

As numerous Justices and judges have recently

suggested, this Court should end its “silence” on the

Sixth Amendment implications of basing a sentence on

acquitted conduct. Jones v. United States, 135 S. Ct.

8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg,

JJ., dissenting from denial of certiorari); see also infra

at 10-11 (statements from other Justices and judges).

This Court’s Sixth Amendment jurisprudence—

moribund when Watts was decided but reinvigorated

since—makes clear that allowing a judge to base a

defendant’s sentence on acquitted conduct is at war

with the right to jury trial. That right preserves the

jury’s common-law function as a “bulwark” between

the defendant and the Government, preventing

defendants from being subjected to punishment for

allegations juries reject. Apprendi v. New Jersey, 530

U.S. 466, 477 (2000). Sentences based on acquitted

conduct make a mockery of that design.

STATEMENT OF THE CASE

1. In early 2017, a border patrol agent came across

petitioner Miguel Cabrera-Rangel and four others

near the Texas-Mexico border. The group scattered,

and the agent pursued petitioner. The agent tackled

petitioner, and a struggle ensued. Def. C.A. Br. 4-5.

After the altercation, the border patrol agent reported,

and received treatment for, injuries to his face. Id. 6.

2. A federal grand jury returned a two-count

indictment against petitioner. Count One charged

assault on a federal officer by physical contact

inflicting bodily injury, under 18 U.S.C. § 111(a)(1) &

(b). Count Two was a lesser-included charge of assault

on a federal officer by physical contact, under 18

U.S.C. § 111(a)(1).

Petitioner exercised his constitutional right to

jury trial. At trial, the agent testified that petitioner

punched him in the face, grabbed the agent’s

flashlight, and then struck the agent with the

flashlight. Def. C.A. Br. 4-6.

In pretrial interviews introduced into evidence,

petitioner conceded that he had an altercation with

the agent. Def. C.A. Br. 8-9. But he maintained that

he never punched the agent or struck him with the

flashlight. Id. Physical evidence also cast doubt on the

agent’s testimony. At trial, forensic examiners

testified that they found no fingerprints, DNA, or

blood on the flashlight. An investigator also recorded

that petitioner was missing two fingers on his left

hand—the hand the agent accused petitioner of using

to grip the flashlight. Finally, the testimony of the

agent’s treating physician indicated that the agent’s

facial injuries could have been caused either by being

struck in the face or simply by tackling another

person. Id. 7-11.

The jury ultimately acquitted petitioner of the

greater charge, infliction of bodily injury. It convicted

him of the lesser-included charge, assault by physical

contact. Pet. App. 20a.

3. When a defendant is convicted of a federal

crime, the Federal Sentencing Guidelines recommend

a sentencing range based on the defendant’s offense

level and criminal history. When setting the offense

level, the Guidelines start with the defendant’s offense

of conviction. But the Guidelines also require

adjustments based on all of the defendant’s “relevant

conduct.” U.S.S.G. § 1B1.3. And pursuant to

Congress’s directive to place “[n]o limitation” on the

information a sentencing court “may receive and

consider,” 18 U.S.C. § 3661, the Guidelines allow a

court to consider any relevant conduct it believes

occurred, even if the jury acquitted the defendant of

the allegation. See United States v. Watts, 519 U.S.

148, 153-54 (1997) (per curiam).

The district court relied on acquitted conduct

here. Looking only to the facts encompassed within the

jury’s verdict, the Guidelines would have produced a

base offense level of 10 and an ultimate offense level

of 13. See U.S.S.G. § 2A2.4. Pairing that offense level

with petitioner’s criminal history category (IV) would

have yielded a Guidelines sentencing range of 24 to 30

months in prison. Def. C.A. Br. 32.1

But the presentence report (PSR), prepared by a

probation officer who attended the trial, did not set

petitioner’s recommended sentence in this manner.

Instead, the PSR recommended a base offense level of

14 under the guideline for Aggravated Assault—the

guideline corresponding to the charge the jury

rejected. See U.S.S.G. § 2A2.2. The PSR also

recommended a 6-level enhancement for the victim

sustaining bodily injury and a 4-level enhancement for

use of a dangerous weapon (the flashlight). Based on a

total offense level of 24, the PSR produced a

Guidelines range of 77 to 96 months’ imprisonment.

Def. C.A. Br. 11-12.

4. Before and during sentencing, petitioner

objected on Sixth Amendment grounds to the district

court’s consideration of acquitted conduct to determine

his sentence. Pet. App. 11a-23a; Def. C.A. Br. 12-13.

As the judge recognized, there was “no dispute” that

Petitioner previously suggested the appropriate offense

level would have been 15, generating a range of 30 to 37 months.

Pet. App. 39a. But that accounting mistakenly included a 2-level

enhancement under U.S.S.G. § 2A2.4(b)(2) for sustaining bodily

injury, the allegation the jury rejected.

the jury acquitted petitioner of the conduct the PSR

relied upon to increase the Guidelines range above 30

months. Pet. App. 29a. The judge nevertheless

overruled petitioner’s objections, insisting that in her

“role as presiding judge over the trial and the

sentencing, the law allow[ed her] to take into account

all of that conduct.” Id.

With respect to the acquitted conduct itself, the

judge acknowledged that petitioner “made very

compelling arguments” at trial and that the jury “went

along with” those arguments. Pet. App. 29a. But the

judge saw things differently. In her view, the agent’s

testimony regarding the use of the flashlight was “very

credible,” and the evidence petitioner introduced

“[did]n’t really support [his] contention” that he never

wielded the flashlight against the agent. Id. 29a-30a.

Accordingly, the judge imposed a 96-month sentence—

the “high end” of the Guidelines range for committing

an assault inflicting bodily injury (and the statutory

maximum under the U.S. Code for the offense for

which he was actually convicted). See id. 41a.2

At the end of the sentencing hearing, the district judge

remarked that she “would have sentenced [petitioner] to the

statutory maximum penalty regardless of the offense level.” Pet.

App. 44a. But such an alternative suggestion can insulate a

sentence from appellate scrutiny only where “the sentence the

district court imposed was not influenced in any way” by the

Guidelines range the defendant argues was incorrectly

calculated. United States v. Martinez-Romero, 817 F.3d 917, 92426 (5th Cir. 2016) (quoting United States v. Ibarra-Luna, 628

F.3d 712, 718-719 (5th Cir. 2010)). And here, the district judge

explicitly chose 96 months because it was the “high end” of the

range calculated according to petitioner’s acquitted conduct. Pet.

App. 41a. Consequently, the Fifth Circuit paid no heed to the

5. Petitioner appealed his sentence, renewing his

Sixth Amendment claim. Pet. App. 2a. He maintained

that calculating his advisory Guidelines range based

on the charge the jury rejected—and thereby using

that range as an anchor for his sentence—violated his

right to jury trial. He also stressed that all federal

sentences must be substantively reasonable, see

United States v. Booker, 543 U.S. 220, 264 (2005), and

that the Sixth Amendment requires juries to find all

facts “essential to the [legality of the] punishment,”

Blakely v. Washington, 542 U.S. 296, 303-06 (2004)

(quoting 1 Joel P. Bishop, Criminal Procedure § 87, at

55 (2d ed. 1872)). That being so, petitioner contended,

the Sixth Amendment does not permit a court to

justify an otherwise unreasonable sentence by relying

on acquitted conduct.

The Fifth Circuit rejected petitioner’s arguments

and affirmed. The court of appeals recognized that

Watts “did not address whether consideration of

acquitted conduct at sentencing violates the Sixth

Amendment.” Pet. App. 2a. But the court of appeals

nevertheless treated Watts as “foreclos[ing]” the claim

that basing a sentence on acquitted conduct

contravenes the right to jury trial. Id.

Turning to the thread of petitioner’s argument

relating to the substantive reasonableness of his

sentence, the court of appeals did not question that

petitioner’s sentence would be substantively

unreasonable if the allegations rejected in the jury’s

verdict were set aside. But the Fifth Circuit reaffirmed

judge’s passing comment, instead deciding only whether the

district court was constitutionally permitted to consider

acquitted conduct at sentencing. See id. 2a-3a.

its prior precedent holding that the Sixth Amendment

does not prohibit sentences that are substantively

reasonable “only if” acquitted conduct is taken into

account. Pet. App. 3a (citing United States v.

Hernandez, 633 F.3d 370, 374 (5th Cir. 2011)).

REASONS FOR GRANTING THE WRIT

Sentencing based on acquitted conduct presents

a vexing and persistent problem that warrants

this Court’s review.

As a growing chorus of jurists has recognized, the

time has come for this Court to address the Sixth

Amendment implications of relying on acquitted

conduct in sentencing criminal defendants.

1. Judicial reliance on acquitted conduct is an

“important, frequently recurring, and troubling

contradiction in sentencing law.” United States v. Bell,

808 F.3d 926, 932 (D.C. Cir. 2015) (Millett, J.,

concurring in the denial of rehearing en banc), cert.

denied, 137 S. Ct. 37 (2016). The Sixth Amendment

right to jury trial is designed to protect defendants

from prosecutorial and judicial overreach. See

Duncan v. Louisiana, 391 U.S. 145, 155-56 (1968).

But, under the current federal sentencing system,

defendants’ sentences can balloon based not on facts

proved to their peers beyond a reasonable doubt, but

on factual allegations juries have actually rejected.

See, e.g., United States v. White, 551 F.3d 381, 388

(6th Cir. 2008) (en banc) (Merritt, J., dissenting), cert.

denied, 556 U.S. 1215 (2009) (14-year increase to

defendant’s sentence); Bell, 808 F.3d at 929 (Millett,

J., concurring in the denial of rehearing en banc) (10to-12-year increase). This phenomenon occurs across

the full range of criminal cases, from tax evasion to

drug crimes.3

Judges’ ability to rely on jury-rejected allegations

at sentencing also discourages defendants from

exercising their right to jury trial in the first place.

Where a defendant faces multiple charges, “a hardfought partial victory” on the more serious charges

“can be rendered practically meaningless when that

acquitted conduct nonetheless produces a drastically

lengthened sentence.” Bell, 808 F.3d at 932 (Millett,

J., concurring in the denial of rehearing en banc).

Faced with “no practical upside” to acquittals on

greater charges unless they secure acquittals on all

charges, such defendants face an “almost

insurmountable pressure” to accept plea deals. See id.

2. Despite entreaties from Members of this Court,

no other institutional actor has stepped in to obviate

the need to decide whether sentencing defendants

based on acquitted conduct violates the Sixth

Amendment. In light of “the role that juries and

acquittals play in our system,” Justice Breyer

suggested years ago that the U.S. Sentencing

Commission may want to bar the practice. United

States v. Watts, 519 U.S. 148, 159 (1997) (per curiam)

(Breyer, J., concurring). But the Sentencing

See, e.g., United States v. Bolton, No. 17-60502, 2018 WL

5603038, at *11 (5th Cir. Oct. 26, 2018) (tax evasion); United

States v. Grace, 640 Fed. Appx. 298, 300 (5th Cir. 2016)

(corruption-related offenses); Bell, 808 F.3d at 929 (Millett, J.,

concurring in the denial of rehearing en banc) (drug conspiracy);

United States v. Shahid, 486 Fed. Appx. 915, 916-17 (2d Cir.

2012) (bribery); United States v. Papakee, 573 F.3d 569, 576 (8th

Cir. 2009) (sexual abuse); United States v. Dewitt, 304 Fed. Appx.

365, 368 (6th Cir. 2008) (murder).

Commission has not acted. Nor has Congress amended

18 U.S.C. § 3661.

Similarly, while sitting on the D.C. Circuit, thenJudge Kavanaugh called for district judges themselves

to “disclaim reliance” on acquitted conduct. Bell, 808

F.3d at 928 (Kavanaugh, J., concurring in the denial

of rehearing en banc). Yet many district judges have

continued to impose sentences based on such conduct.

All too often, as in this case, defendants are acquitted

on certain charges, only to see judges “brush off the

jury’s judgment” by “us[ing] the very same facts the

jury rejected at trial to multiply the duration of a

defendant’s loss of liberty.” See id. at 930 (Millett, J.,

concurring in the denial of rehearing en banc).

3. As Justices and judges have increasingly

emphasized, this “disregard[]” for the Sixth

Amendment “has gone on long enough.” Jones v.

United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined

by Thomas & Ginsburg, JJ., dissenting from denial of

certiorari).

A few Terms ago, three Justices called on the

Court to “put an end” to the practice of sentencing

defendants based on acquitted conduct. Id. Justice

Kennedy warned that increasing a sentence based on

facts the jury rejected raises concerns of “undercutting

the verdict of acquittal.” 519 U.S. at 170 (Kennedy, J.,

dissenting). And this Court’s two newest members

have expressed similar sentiments. Then-Kavanaugh

has posited that increasing a defendant’s sentence

based on acquitted conduct “seems a dubious

infringement of the rights to due process and to a jury

trial.” Bell, 808 F.3d at 928 (Kavanaugh, J., concurring

in the denial of rehearing en banc). Citing the Jones

case, then-Judge Gorsuch likewise has maintained

that it is at least “questionable” for a judge to find facts

“without the aid of a jury or the defendant’s consent.”

United States v. Sabillon-Umana, 772 F.3d 1328, 1331

(10th Cir. 2014).

At least ten other federal appellate judges have

expressed similar misgivings, with many also urging

the Court to “resolve the contradictions in the current

state of [Sixth Amendment] law.” See Bell, 808 F.3d at

928-32 (Millett, J., concurring in the denial of

rehearing en banc); see also, e.g., United States v.

Canania, 532 F.3d 764, 776-77 (8th Cir.) (Bright, J.,

concurring), cert. denied, 555 U.S. 1037 (2008). Some

of these judges have concluded that the use of

acquitted

conduct

sentencing

flatly

unconstitutional, maintaining that the practice

“violates both our common law heritage and common

sense.” White, 551 F.3d at 387 (en banc) (Merritt, J.,

dissenting) (writing on behalf of six judges); see also,

e.g., United States v. Mercado, 474 F.3d 654, 658-65

(9th Cir. 2007) (Fletcher, J., dissenting), cert. denied,

552 U.S. 1297 (2008); United States v. Faust, 456 F.3d

1342, 1349-53 (11th Cir.) (Barkett, J., specially

concurring), cert. denied, 549 U.S. 1046 (2006).

To be sure, no split among the courts of appeals

has developed on this Sixth Amendment question. See

Mercado, 474 F.3d at 657. But the fact that so many

federal appellate judges perceive a constitutional

infirmity in a recurring and consequential sentencing

practice strongly signals that this Court’s intervention

and guidance is needed.

What is more, the current rule across the courts of

appeals derives more from the courts’ misperception

that they are bound by seemingly broad language in

Watts than from any considered judgment on the

issue. In Watts, the Court stated that “acquittal does

not prevent the sentencing court from considering the

conduct underlying the acquitted charge, so long as

that conduct has been proved by a preponderance of

the evidence.” 519 U.S. at 157. But Watts concerned

only the Double Jeopardy Clause and did not consider

the Sixth Amendment issue. See United States v.

Booker, 543 U.S. 220, 240 & n.4 (2005).

Needless to say, a given practice can violate one

provision of the Constitution even where the Court has

held that it does not violate a different provision. For

example, although the Court earlier held that grossly

excessive punitive damages awards do not violate the

Eighth Amendment’s Excessive Fines Clause, it later

held that such awards do violate the Due Process

Clause. Compare Browning-Ferris Indus. v. Kelco

Disposal, 492 U.S. 257, 260 (1989), with BMW of N.

Am., Inc. v. Gore, 517 U.S. 559, 568 (1996). And

carrying over the Fifth Amendment analysis in Watts

to the Sixth Amendment is even less justified where,

as here, the prior opinion “was rendered without full

briefing or argument.” See Hohn v. United States, 524

U.S. 236, 251 (1998).

The Fifth Circuit and other federal courts of

appeals have nonetheless taken Watts to “foreclose[]”

any claim that sentencing a defendant based on

acquitted conduct violates the Sixth Amendment. See

Pet. App. 2a; see also, e.g., United States v. Gobbi, 471

F.3d 302, 314 (1st Cir. 2006); Mercado, 474 F.3d at

656-57; Faust, 456 F.3d at 1348. Only this Court can

disabuse them of that notion.

II. The decision below is fundamentally wrong.

The Sixth Amendment precludes judges

from using acquitted conduct to increase a

criminal defendant’s sentence.

As this Court has explained, the Sixth

Amendment right to trial by jury incorporates the

common-law understanding of that right. Both that

historical conception and this Court’s modern

jurisprudence show that the use of acquitted conduct

at sentencing violates the Sixth Amendment.

1. A criminal defendant’s right to jury trial is “a

fundamental

reservation

power in

our

constitutional structure.” Blakely v. Washington, 542

U.S. 296, 305-06 (2004). In two ways, this reservation

serves as “the great bulwark of [our] civil and political

liberties.” See 3 Joseph Story, Commentaries on the

Constitution of the United States 652 (1833).

First, the right to jury trial reflects a “profound

judgment about the way in which law should be

enforced and justice administered.” Duncan v.

Louisiana, 391 U.S. 145, 155 (1968). In particular,

making a criminal defendant’s peers the ultimate

arbiters of fact is designed to shield the accused from

“the corrupt or overzealous prosecutor” or the

“compliant, biased, or eccentric judge.” Id. at 156. “If

the defendant preferred the common-sense judgment

of a jury . . . he was to have it.” Id.

Second, the right to jury trial safeguards citizen

authority over the extent to which courts may deprive

persons of their liberty. “Just as suffrage ensures the

people’s ultimate control in the legislative and

executive branches, jury trial is meant to ensure their

control in the judiciary.” Blakely, 542 U.S. at 306.

Such popular control over criminal punishment is

essential to the Framers’ vision of a government by the

people. In the words of Alexander Hamilton:

The friends and adversaries of the plan of the

convention, if they agree in nothing else,

concur at least in the value they set upon the

trial by jury; or if there is any difference

between them it consists in this: the former

regard it as a valuable safeguard to liberty;

the latter represent it as the very palladium

of free government.

The Federalist No. 83, at 499 (Clinton Rossiter ed.,

1961).

2. The jury carries out its role as the

“circuitbreaker in the State’s machinery of justice,”

Blakely, 542 U.S. at 306-07, through its unreviewable

power to acquit defendants of criminal charges. When

the jury acquits, it makes a “legal certification” that

“an accused person is not guilty of the charged

offense.” Acquittal, Black’s Law Dictionary (10th ed.

2014). As this Court has emphasized, “the law

attaches particular significance,” United States v.

Scott, 437 U.S. 82, 91 (1978), and “special weight” to a

jury’s decision to acquit a defendant, United States v.

DiFrancesco, 449 U.S. 117, 129 (1980).4 An acquittal is

meant to be final and “unassailable.” Yeager v. United

States, 557 U.S. 110, 122-23 (2009).

The famed acquittal of William Penn and William Mead is

illustrative. There, the royal judges threatened to starve the

jurors—and later fined and jailed them—to pressure them to

change their verdict. But because the jury refused, the judges

could not punish the defendants for allegations the jury rejected.

See Leonard W. Levy, The Palladium of Justice 57-60 (1999).

Juries can exercise their constraining power by

fine-tuning their verdict to multiple charges before

them. By convicting a defendant on one or more

charges but acquitting on others, a jury can indicate

when it thinks a prosecutor has overreached or when

a defendant’s conduct otherwise does not warrant

punishment on the basis of a particular charge.

This practice has its roots in eighteenth-century

England. The jury’s “power to thwart Parliament and

Crown took the form not only of flat-out acquittals in

the face of guilt but of what today we would call

verdicts of guilty to lesser included offenses.” Jones v.

United States, 526 U.S. 227, 245 (1999).

These mixed verdicts—part of our common law

“inheritance” that the Sixth Amendment preserves,

Duncan, 391 U.S. at 154 (quoting Thompson v. Utah,

170 U.S. 343, 349-50 (1898))—allowed juries to

modulate a defendant’s punishment. At common law,

each crime carried a determinate sentence, whether it

was death, corporal punishment, fines, or some other

specified sanction. See Ilene H. Nagel, Structuring

Sentencing Discretion: The New Federal Sentencing

Guidelines, 80 J. Crim. L. & Criminology 883, 891-92

(1990). Juries generally knew what punishment would

result from any given verdict. See Judge Nancy

Gertner, A Short History of American Sentencing, 100

J. Crim. L. & Criminology 691, 692-94 (2010).

Therefore, by virtue of the charges on which they

acquitted or convicted a defendant, English juries

effectively controlled which sanction a defendant

would receive—or at least whether the defendant

would be punished more harshly or not. See id. at 693.

The jury’s power to find “an offense less in degree

than that charged in the indictment” was “one of the

most important aspects of the jury’s prerogative.”

Julius Goebel, Jr. & T. Raymond Naughton, Law

Enforcement in Colonial New York: A Study in

Criminal Procedure (1664-1776), at 673-75 (1944).

Take homicide, for instance. By finding a defendant

guilty of either murder or manslaughter, English

juries made “the choice between capital punishment

and branding.” John H. Langbein, The Criminal Trial

Before the Lawyers, 45 U. Chi. L. Rev. 263, 304 (1978).

Juries similarly dictated sanctions in larceny cases.

Through their power to establish the valuation of

stolen goods, juries effectively determined defendants’

punishments—whether transportation or death,

whipping or a short jail term, or branding the thumb.

Id. at 303-04.

At times, juries exercised their acquittal power (as

they do today) because they were unpersuaded by the

prosecution’s case concerning the greater charge.

Other times, they did so in the teeth of the evidence,

with the express purpose of mitigating harsh

sentences—a practice William Blackstone praised as

“pious perjury.” See Apprendi v. New Jersey, 530 U.S.

466, 479 n.5 (2000) (quoting 4 William Blackstone,

Commentaries on the Laws of England *238 (1769)).

Either way, “the trial jury exercised an important role

in what was functionally the choice of sanction,

through its power to manipulate the verdict by

convicting on a charge that carried a lesser penalty.”

John H. Langbein, The Origins of Adversary Criminal

Trial 57-58 (Oxford Press ed. 2003).

3. It is incumbent upon this Court to “preserv[e]

[this] ancient guarantee under a new set of

circumstances”—namely, the sentencing system

prescribed by the Federal Sentencing Guidelines.

United States v. Booker, 543 U.S. 220, 237 (2005); see

also Riley v. California, 134 S. Ct. 2473, 2494-95 (2014)

(emphasizing the Court’s equivalent duty in the

Fourth Amendment context). And calculating a

defendant’s sentence according to jury-rejected

charges is a direct affront to the integrity of the jury’s

acquittal.

When a federal court relies on acquitted conduct

at sentencing, it “expressly consider[s] facts that the

jury verdict not only failed to authorize; it considers

facts of which the jury expressly disapproved.” United

States v. Pimental, 367 F. Supp. 2d 143, 152 (D. Mass.

2005) (Gertner, J.). This is especially true where, as

here, a jury has acquitted on a greater offense but

convicted on a lesser offense. A single element, or fact,

often differentiates the greater from the lesser offense.

In such cases, the judge’s contrary factual finding

tramples the jury’s factfinding domain.

Worse yet, a judge who bases a sentence on an

acquitted charge nullifies the jury’s determination

that a defendant should not be punished according to

the more serious allegation. After all, the jury can only

authorize punishment, or withhold its authorization,

through its verdict. United States v. Mercado, 474

F.3d 654, 663 (9th Cir. 2007) (Fletcher, J., dissenting).

When a judge so directly overrides the jury verdict—

the jury’s only tool for modulating punishment—the

“liberty-protecting bulwark [of the jury] becomes little

more than a speed bump at sentencing.” See United

States v. Bell, 808 F.3d 926, 929 (D.C. Cir. 2015)

(Millett, J., concurring in the denial of rehearing en

banc).

Finally, the use of acquitted conduct at sentencing

threatens the legitimacy of the system of trial by jury.

In construing and enforcing constitutional guarantees,

this Court frequently considers whether a given

practice “undermine[s] public confidence in the

fairness of our system of justice.” See Batson v.

Kentucky, 476 U.S. 79, 87 (1986); see also RosalesMireles v. United States, 138 S. Ct. 1897, 1903 (2018)

(expressing concern where sentencing practices

“seriously affect the fairness, integrity, or public

reputation of judicial proceedings”).

The use of acquitted conduct at sentencing “rob[s

the criminal justice] system of the democratic

legitimacy conferred by the jury’s role.” Barry L.

Johnson, The Puzzling Persistence of Acquitted

Conduct in Federal Sentencing, and What Can Be

Done About It, 49 Suffolk U. L. Rev. 1, 26 (2016). It

transforms jurors from participants in the system into

mere bystanders, “allowing a prosecutor and judge to

say that a jury verdict of ‘not guilty’ for practical

purposes may not mean a thing.” United States v.

Canania, 532 F.3d 764, 778 (8th Cir. 2008) (Bright, J.,

concurring). This defeats the purpose of jury service.

It also signals to the public that a defendant’s

punishment turns entirely on the views of the

prosecutor and judge, not the judgment of his peers.5

As one juror wrote about the use of acquitted conduct at

sentencing for an eight-month trial in which he served:

It seems to me a tragedy that one is asked to serve on

a jury, serves, but then finds their work may not be

given the credit it deserves. . . . It appears to me that

these defendants are being sentenced not on the

charges for which they have been found guilty but on

the charges for which the [prosecutor] would have liked

them to have been found guilty.

Vindicating the right to jury trial is

compatible with the realities of modern

sentencing.

Some courts of appeals have noted that, unlike the

common law, the U.S. Code provisions that govern

modern sentencing provide judges with broad

statutory sentencing ranges. These courts thus reason

that, “[s]o long as the defendant receives a sentence at

or below the [applicable] statutory ceiling,” the Sixth

Amendment poses no barrier to increasing the

sentence based on acquitted conduct. United States v.

White, 551 F.3d 381, 385 (6th Cir. 2008) (en banc).

This approach is misguided.

1. It is of course true that modern sentencing

differs in some ways from the prevailing model at

common law. Not only do judges now customarily

select sentences within broad statutory ranges, but

they do so based on facts not found by the jury. See

Williams v. New York, 337 U.S. 241, 247-51 (1949).

But under the Federal Sentencing Guidelines

system, courts do not have unbridled discretion within

applicable statutory sentencing ranges to impose any

sentence they like. See Gall v. United States, 552 U.S.

38, 49-50 (2007). Judges are required, in every single

case, to calculate and consider the Guidelines range.

See id. at 51; 18 U.S.C. § 3553(a)(4). And while judges

can deviate from that range, the Guidelines’ highly

regimented and specific numerical prescriptions

exert—in the words of an editor of the Federal

Sentencing Reporter—a “special gravitational pull” in

Canania, 532 F.3d at 778 n.4 (Bright, J., concurring) (quoting

May 16, 2008 Letter from Juror # 6 to The Honorable Richard W.

Roberts).

sentencing. See Michael M. O’Hear, Explaining

Sentences, 36 Fla. St. U. L. Rev. 459, 482 (2009). As a

result, most federal sentences are either withinGuidelines sentences or are significantly influenced by

the Guidelines. See Molina-Martinez v. United States,

136 S. Ct. 1338, 1345-47 (2016); Peugh v. United

States, 569 U.S. 530, 543-44 (2013).6

In light of this finely reticulated framework and

its consequences, prohibiting judicial consideration of

acquitted conduct strikes the proper balance between

tailoring sentences to defendants’ individual circumstances and preserving Sixth Amendment values. In

numerous areas of constitutional law, governmental

actors generally have wide governmental discretion,

but certain specific considerations are off the table.

See Richard H. Pildes, Avoiding Balancing: The Role

of Exclusionary Reasons in Constitutional Law, 45

Hastings L.J. 711, 712 (1994). In the realm of

sentencing itself, it is “constitutionally impermissible”

for courts to rely on a defendant’s race, religion, or

political affiliation, Zant v. Stephens, 462 U.S. 862,

885 (1983); the fact that the defendant successfully

exercised his right to appeal, North Carolina v. Pearce,

395 U.S. 711, 723-24 (1969); or that the defendant

exercised his right to jury trial, United States v.

Jackson, 390 U.S. 570, 581-83 (1968); United States v.

Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982)

(describing this prohibition as “well settled”). Given

the incompatibility of acquitted conduct with the right

to jury trial, such conduct must also be off the table.

Three-quarters of federal sentences thus far in fiscal year

2018 were imposed according to the Guidelines. See U.S.

Sentencing Comm’n, Quarterly Data Report 11 tbl.8A (Oct. 22,

2018).

Indeed, recognizing Sixth Amendment limits on

sentencing courts’ ability to rely on acquitted conduct

would further—rather than undercut—the Sentencing

Reform Act’s goal of “increased uniformity” in

sentencing, United States v. Booker, 543 U.S. 220, 246

(2005) (Breyer, J.). Under the current system, district

judges are free either to rely on or to “disclaim reliance

on acquitted or uncharged conduct.” United States v.

Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh,

J., concurring in the denial of rehearing en banc).

Some judges refuse as a matter of practice to take

acquitted conduct into account. See, e.g., United

States v. Wendelsdorf, 423 F. Supp. 2d 927, 929 (N.D.

Iowa 2006); United States v. Pimental, 367 F. Supp.

2d 143, 146-47 (D. Mass. 2005). Yet others, like the

judge here, have no qualms about relying on acquitted

conduct. See, e.g., United States v. Bolton, No. 1760502, 2018 WL 5603038, at *10-11 (5th Cir. Oct. 26,

2018); United States v. Moment, No. 17-3149, 2018

WL 4847082, at *2-3 (6th Cir. Oct. 5, 2018); United

States v. Jackson, No. 16-17119, 2018 WL 4492376, at

*2 (11th Cir. Sept. 19, 2018). Barring reliance on

acquitted conduct would thus further Congress’s goal

of imposing comparable sentences where defendants

engage in similar conduct resulting in similar jury

verdicts.

2. Even if the Sixth Amendment does not

categorically prohibit reliance on acquitted conduct,

this Court’s Apprendi jurisprudence prohibits the use

of acquitted conduct where, as here, a sentence would

be substantively unreasonable but for reliance on facts

that the jury rejected.

Under the Apprendi rule, juries must find all facts

essential to a lawful sentence. The Sixth Amendment

“does not permit a defendant to be ‘expose[d] . . . to a

penalty exceeding the maximum he would receive if

punished according to the facts reflected in the jury

verdict alone.’” Ring v. Arizona, 536 U.S. 584, 588-89

(2002) (alteration in original) (quoting Apprendi v.

New Jersey, 530 U.S. 466, 483 (2000)); see also

Blakely v. Washington, 542 U.S. 296, 303-04 (2004).

While the U.S. Code sets a maximum sentence for

every crime, even sentences below that maximum are

lawful only if they are “substantive[ly] reasonable[].”

See Gall, 552 U.S. at 51; Booker, 543 U.S. at 261-63.

And substantive reasonableness “imposes a very real

constraint on a judge’s ability to sentence across the

full statutory range.” Cunningham v. California, 549

U.S. 270, 309 (2007) (Alito, J., joined by Kennedy and

Breyer,

JJ.,

dissenting).7

Thus,

substantive

reasonableness—and not the maximum delineated in

the U.S. Code—establishes the ceiling for any lawful

federal criminal sentence. See Rita v. United States,

551 U.S. 338, 372 (2007) (Scalia, J., joined by Thomas,

J., concurring in part and concurring in the judgment).

Putting the Apprendi rule together with the

requirement that federal sentences be substantively

reasonable dictates that if a particular fact is required

to make a federal sentence substantively reasonable,

then that fact implicates the Sixth Amendment right

See, e.g., United States v. Singh, 877 F.3d 107, 116-17 (2d

Cir. 2017) (5-year sentence was substantively unreasonable

where the statutory maximum was 20 years); United States v.

Chandler, 732 F.3d 434, 437, 440 (5th Cir. 2013) (35-year

sentence was substantively unreasonable where the statutory

maximum was life imprisonment).

to trial by jury.8 At the very least, the Sixth

Amendment prohibits a judge from relying on facts a

jury rejected to justify an otherwise unreasonable

sentence.

III. This case is an ideal vehicle for resolving the

question presented.

For three reasons, this case offers the right

opportunity to decide whether, or under what circumstances, the Sixth Amendment prohibits federal

judges from basing sentences on acquitted conduct.

Justice Scalia illustrated this reality with the following

hypothetical:

[T]he base offense level for robbery under the

Guidelines is 20, which, if the defendant has a criminal

history of I, corresponds to an advisory range of 33-41

months. If, however, a judge finds that a firearm was

discharged, that a victim incurred serious bodily

injury, and that more than $5 million was stolen, then

the base level jumps by 18, producing an advisory

range of 235-293 months. When a judge finds all of

those facts to be true and then imposes a withinGuidelines sentence of 293 months, those judge-found

facts, or some combination of them, are not merely

facts that the judge finds relevant in exercising his

discretion; they are the legally essential predicate for

his imposition of the 293-month sentence. His failure

to find them would render the 293-month sentence

unlawful. That is evident because, were the district

judge explicitly to find none of those facts true and

nevertheless to impose a 293-month sentence (simply

because he thinks robbery merits seven times the

sentence that the Guidelines provide) the sentence

would surely be reversed as unreasonably excessive.

Rita, 551 U.S. at 371-72 (Scalia, J., concurring in part and

concurring in the judgment) (citations omitted).

1. There are no procedural obstacles to reaching

the question presented. During sentencing, defense

counsel objected to the use of acquitted conduct in

calculating petitioner’s offense level. Pet. App. 11a23a. The Sixth Amendment question was the sole

issue on appeal, and the Fifth Circuit squarely

addressed the claim. Id. 1a-3a.

2. The facts of this case place the question of using

acquitted conduct at sentencing in stark relief. First,

unlike some acquitted conduct cases that arise from a

mixed verdict on two unrelated charges, this case

involves the classic scenario of a greater and lesser

charge. Thus, it is especially clear what factual

allegation the jury rejected—namely, the allegation

that petitioner caused the agent to suffer bodily injury.

Second, the judge explicitly took this acquitted

conduct into account. She acknowledged that the

prosecution’s evidence in support of the greater charge

was, in the “eyes of the jury,” not persuasive. See Pet.

App. 29a. Yet the judge disregarded the jury’s

findings, stating that in her “role as the presiding

judge . . . the law allow[ed her] to take into account all

of that [acquitted] conduct.” Id. She then based her

sentence on the very allegation and testimony the jury

rejected.

3. The district court’s reliance on acquitted

conduct had a pronounced effect on petitioner’s

sentence. His offense of conviction (assault by physical

contact) carried a Guidelines range of 24 to 30 months.

See supra at 5. Yet the judge calculated petitioner’s

Guidelines range as if he had been convicted of the

greater charge (inflicting bodily injury on the border

patrol agent). This resulted in a Guidelines range of 77

to 96 months—roughly triple the applicable range for

his offense of conviction. The judge ultimately imposed

a sentence of 96 months, the high end of the

Guidelines range for the acquitted offense. See Pet.

App. 41a.

The dramatic effect of using acquitted conduct

means that this case also highlights the subsidiary

question whether acquitted conduct can be used to

justify a sentence that would otherwise be

substantively unreasonable. When reviewing a

sentence for substantive reasonableness, a court must

“take into account the totality of the circumstances,

including the extent of any variance” from the

Guidelines range that would have applied but for the

facts at issue. Gall v. United States, 552 U.S. 38, 51

(2007); see also United States v. Rhine, 637 F.3d 525,

529 (5th Cir. 2011).

Petitioner’s sentence was a sharp departure from

the Guidelines range corresponding only to the facts of

his conviction. His sentence was four times longer

than the median federal sentence imposed on

defendants convicted of assault in the same criminal

history category.9 It was also more than three times

longer than the maximum Guidelines sentence for

facts encompassed in the offense of conviction. Indeed,

the district court sentenced petitioner to the maximum

sentence of the Guidelines range for the offense of

which he was acquitted. In light of all of these

touchstones, the Fifth Circuit did not question that the

U.S. Sentencing Comm’n, Interactive Sourcebook,

Sentence Length for Offenders in Each Criminal History

Category by Primary Offense Category (2017). The Sentencing

Commission calculated a 24-month median for individuals with a

criminal history category of IV sentenced to the primary offense

category of “Assault” in fiscal year 2017.

bodily injury allegation that the jury rejected is

essential to the substantive reasonableness of

petitioner’s sentence.

This Court should settle once and for all whether

hinging a sentence on acquitted conduct in this

manner transgresses the Sixth Amendment. And the

Court should hold that it does.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted,