Amicus Curiae Brief — Miguel Cabrera-Rangel, Petitioner v. United States

No. 18-650

IN THE

Supreme Court of the United States

______________________

MIGUEL CABRERA-RANGEL,

Petitioner,

v.

UNITED STATES OF AMERICA,

_____________

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit

_____________

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS CURIAE

IN SUPPORT OF PETITIONER

_____________

Jeffrey T. Green

Co-Chair, Supreme Court

Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1625 Eye Street, NW

Washington, DC 20006

Kayleigh Scalzo

Counsel of Record

Michael J. Fanelli

Matthew V. Miller

Thomas Blackmon

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kscalzo@cov.com

(202) 662-6000

Counsel for Amicus Curiae

December 20, 2018

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

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

INTEREST OF AMICUS CURIAE ............................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .........................................................2

ARGUMENT ...............................................................5

I.

Neither Watts nor procedural obstacles

hinder the Court’s consideration of

petitioner’s Sixth Amendment claim. ..................5

A.

Petitioner’s case casts in stark relief

the grave constitutional concerns that

can arise from a judge’s use of

acquitted conduct at sentencing. .................8

B.

This case presents no procedural

obstacles. .....................................................11

II. The Fifth Circuit and other courts of

appeals have rejected prior Sixth

Amendment challenges in deference to

Watts rather than on the merits. ....................... 11

A.

The lower courts’ deference to Watts

conflicts with this Court’s Sixth

Amendment jurisprudence. .......................12

B.

Several jurists (including Justices of

this

Court),

practitioners,

and

scholars have written disapprovingly

of the overextension of Watts. ....................13

III. The broad language of 18 U.S.C. § 3661 and

the

Sentencing

Guidelines

notwithstanding, the Sixth Amendment

i

forbids extending a sentence based on

acquitted conduct. ............................................... 18

A.

The Sixth Amendment forbids

sentencing based on conduct for which

a defendant was acquitted. ........................19

B.

The broad language of 18 U.S.C.

§ 3661 and the Sentencing Guidelines

do not lie beyond the Sixth

Amendment’s purview. ..............................21

CONCLUSION .......................................................... 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) .................................... 19, 20, 21

Apprendi v. New Jersey,

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

United States ex rel. Attorney General v.

Delaware & Hudson Co.,

213 U.S. 366 (1909) .............................................. 21

Blakely v. Washington,

542 U.S. 296 (2004) .................................... 3, 19, 20

Gardner v. Florida,

430 U.S. 349 (1977) .............................................. 22

Jones v. United States,

135 S. Ct. 8 (2014) ........................................ passim

Jones v. United States,

529 U.S. 848 (2000) .............................................. 21

Rita v. United States,

551 U.S. 338 (2007) ............................................ 8, 9

Rodriguez de Quidia v. Shearson/American

Express, Inc., 490 U.S. 477 (1989) ....................... 12

Southern Union Co. v. United States,

132 S. Ct. 2344 (2012) ............................................ 3

iii

Townsend v. Burke,

334 U.S. 736 (1948) .............................................. 22

United States v. Azhworth,

139 F. App’x. 525 (4th Cir. 2005) (per

curiam) ................................................................. 12

United States v. Bell,

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

United States v. Booker,

543 U.S. 220 (2005) .................................. 5, 6, 7, 12

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) ................................ 17

United States v. Dorcely,

454 F.3d 366 (D.C. Cir. 2006) .............................. 12

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) ............................ 16

United States v. Gobbi,

471 F.3d 302 (1st Cir. 2006) ............................ 5, 12

United States v. Hayward,

177 F. App’x 214 (3d Cir. 2006) ........................... 12

United States v. Henry,

472 F.3d 910 (D.C. Cir. 2007) .............................. 13

United States v. Jones,

194 F. App’x 196 (5th Cir. 2006).......................... 12

iv

United States v. Lasley,

832 F.3d 910 (8th Cir. 2016), cert.

denied, 137 S. Ct. 823, 196 L. Ed. 2d 608

(2007) .................................................................... 17

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007) ............................ 5, 12

United States v. Papakee,

573 F.3d 5698 (8th Cir. 2009) .......................... 4, 17

United States v. Price,

418 F.3d 771 (7th Cir. 2005) ................................ 12

United States v. Sabillon-Umana,

772 F.3d 1328 (10th Cir. 2014) ........................ 4, 14

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008) .............................. 13

United States v. Vaughn,

430 F.3d 518 (2d Cir. 2005) ................................. 12

United States v. Watts,

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

United States v. White,

551 F.3d 3814 (6th Cir. 2008) (en banc) .......... 5, 12

Witte v. United States,

515 U.S. 389 (1995) ................................................ 2

Statutes

18 U.S.C. § 111(a) ........................................................ 9

18 U.S.C. § 3661 ................................................ passim

v

Other Authorities

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, 3 &

n.15 (2016) ............................................................ 17

Erica K. Beutler, A Look at the Use of

Acquitted Conduct in Sentencing, 88 J.

Crim. L. & Criminology 809, 846 (1998) ............. 18

James J. Bilsborrow, Sentencing Acquitted

Conduct to the Post-Booker Dustbin, 49

Wm. & Mary L. Rev. 289, 321 (2007) .................. 17

U. Denv. Crim. L. Rev 173, 194 (2015) ..................... 17

United States Sentencing Guidelines

Manual ......................................................... passim

Constitutional Provisions

U.S. Const., amend. V ................................. 3, 6, 16, 17

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

vi

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE SUPPORTING PETITIONER

This brief is submitted on behalf of the National

Association of Criminal Defense Lawyers (“NACDL”)

as amicus curiae. 1

INTEREST OF AMICUS CURIAE

The NACDL is a nonprofit voluntary professional

bar association founded in 1958 that works on behalf

of criminal defense attorneys to ensure justice and

due process for those accused of crime. NACDL has a

nationwide membership of approximately 9,200. Its

many state, provincial, and local affiliate

organizations encompass up to 40,000 attorneys.

NACDL’s members include private criminal defense

attorneys, public defenders, military defense counsel,

law professors, and judges.

NACDL frequently

appears as amicus curiae before this Court and other

federal and state courts, offering its perspective in

cases that present issues of broad importance to

criminal defendants, criminal defense lawyers, and

the criminal justice system as a whole.

1 No counsel for any party has authored this brief in whole or in

part, and no person other than amicus or its counsel has made

any monetary contribution intended to fund the preparation or

submission of this brief. Petitioner’s letter consenting to the filing of amicus curiae briefs generally has been filed with the

Clerk’s office. Respondent’s consent to the filing of this brief

without ten days’ prior notice is on file with counsel of record.

1

INTRODUCTION AND

SUMMARY OF ARGUMENT

This is a ripe opportunity for the Court to address

an injustice that threatens to deprive the petitioner’s

liberty, as it has for innumerable others. Contrary to

the meaning of the Court’s decision in United States

v. Watts, 519 U.S. 148 (1997) (per curiam), and the

Court’s more recent precedent addressing the

interplay between the Sixth Amendment and the

Federal Sentencing Guidelines, Watts has been

misconstrued to preclude inquiry into whether the

Sixth Amendment is violated when a sentencing court

uses acquitted conduct to enhance a defendant’s

sentence.

For two decades Watts has been used to preserve

a judge’s discretion to use acquitted conduct to

multiply the length of a criminal sentence by several

times over what the Federal Sentencing Guidelines

range would be based solely on the jury’s conviction

and the facts underlying it. In petitioner’s case, the

trial judge sentenced him to 96 months in prison

based on acquitted conduct that dramatically shifted

his Guidelines range from 24 to 30 months up to 77 to

96 months.

Watts holds that a court’s consideration of

acquitted conduct in its determination of a criminal

sentence is consistent with the “clear implications of

18 U.S.C. § 3661, the Sentencing Guidelines, and this

Court’s decisions, particularly Witte v. United States,

515 U.S. 389 (1995) . . . .” Watts, 519 U.S. at 149. The

Court, however, never addressed in Watts, Witte, or

any other decision whether the use of acquitted

2

conduct to sentence a defendant is consistent with

Fifth and Sixth Amendment principles governing

standards of proof necessary for conviction and the

right to a jury trial.

Since Watts, the Court has clarified and very

narrowly construed the scope of judicial discretion visà-vis the jury’s constitutional and fact-finding roles.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the

Court held that any “facts that increase the prescribed

range of penalties to which a criminal defendant is

exposed” are essential elements of a crime and that

the Sixth Amendment guarantees defendants the

right to have a jury find those facts beyond a

reasonable doubt. Id. at 490. Apprendi made clear

that a “fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be

submitted to a jury.” Id. Later decisions echoed this

principle: “[w]hile judges may exercise discretion in

sentencing they may not ‘inflic[t] punishment that the

jury’s verdict alone does not allow.” Southern Union

Co. v. United States, 132 S. Ct. 2344, 2350 (2012)

(quoting Blakely v. Washington, 542 U.S. 296, 304

(2004)).

Jurists—including justices and former justices of

this Court—have suggested that judicial fact-finding

involving acquitted conduct is constitutionally

dubious and that the Court’s intervention is needed.

In 2015, then-Judge Kavanuagh wrote of his “concern

about the use of acquitted conduct at sentencing.”

United States v. Bell, 808 F.3d 926, 927 (D.C. Cir.

2015) (Kavanaugh, J., concurring in the denial of

rehearing en banc). In 2014, then-Judge Gorsuch

wrote that it was “far from certain whether the

3

Constitution allows” sentence enhancement based on

facts a jury did not find. United States v. SabillonUmana, 772 F.3d 1328, 1331 (10th Cir. 2014). And in

a 2014 dissent from a denial of certiorari, Justice

Scalia was joined by Justices Thomas and Ginsburg in

writing, “the Courts of Appeals have uniformly taken

our continuing silence to suggest that the

Constitution does permit otherwise unreasonable

sentences supported by judicial factfinding, so long as

they are within the statutory range.” Jones v. United

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

from denial of certiorari, joined by Thomas and

Ginsburg, JJ.).

Judges of the courts of appeals also have

expressed concern about the overextension of Watts.

Judge Millet of the D.C. Circuit and Judge Bright of

the Eighth Circuit have expressly called for the

Court’s attention to this issue. See Bell, 808 F.3d at

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

en banc); United States v. Papakee, 573 F.3d 569, 577–

78 (8th Cir. 2009) (Bright, J., concurring).

Punishing a defendant for acquitted crimes

undermines the essential role of the jury and violates

the defendant’s Sixth Amendment rights.

This

Court’s jurisprudence reflected in Apprendi and its

progeny cannot be reconciled with the practice of

enhancing a sentence based on alleged crimes for

which a jury found a defendant not guilty. And yet

lower courts, finding themselves bound by Watts,

continue to permit sentences to be inflated in that

manner.

4

Certiorari should be granted to enable the Court

to provide the long-needed clarification of Watts

consistent

with

this

Court’s

post-Apprendi

jurisprudence to protect petitioner’s and others’ Sixth

Amendment rights.

ARGUMENT

I.

NEITHER WATTS NOR PROCEDURAL

OBSTACLES HINDER THE COURT’S

CONSIDERATION OF PETITIONER’S

SIXTH AMENDMENT CLAIM.

This case presents a stark, clean, and compelling

vehicle for the Court to resolve the contradictions

between the Sixth Amendment and the practice of

judges relying on acquitted conduct to enhance a

sentence beyond what a jury’s verdict permits. In the

twenty-one years since this Court decided Watts,

lower courts have relied on it to permit the use of

acquitted conduct in sentencing, even if doing so

extends sentences beyond what the Sixth Amendment

permits. 2

Watts involved challenges by two petitioners to

their sentences, respectively, that were enhanced on

2 See e.g., United States v. White, 551 F.3d 381, 383–84 (6th Cir.

2008) (en banc); United States v. Mercado, 474 F.3d 654, 657 (9th

Cir. 2007) (The “core principle of Watts lives on and [a] district

court [may] constitutionally consider . . . acquitted conduct”);

United States v. Gobbi, 471 F.3d 302, 314 (1st Cir. 2006) (“[P]reBooker case law made plain that acquitted conduct, proved to the

sentencing court by a preponderance of the evidence, may form

the basis of a sentencing enhancement.”) (citing to Watts, 519

U.S. at 157 (internally citing United States v. Booker, 543 U.S.

220 (2005))).

5

the basis of judicially found facts relating to offenses

of which they were acquitted by juries. One petitioner

challenged the extension of his term based on the

judge’s finding that he possessed a firearm despite the

jury acquitting the defendant of using a firearm in the

underlying crime of which he was convicted. Watts,

519 U.S. at 149–50. The other petitioner, who was

convicted by the jury of involvement in one drug

transaction but not a second, challenged the

enhancement of her sentence based on the judge’s

finding at sentencing that sufficient evidence existed

that she had been involved in both transactions. Id.

at 150–51.

The issue before the Court in Watts was whether

the sentencing courts’ reliance on factual findings

with respect to the acquitted offenses violated the

Fifth Amendment’s Due Process and Double Jeopardy

Clauses. The Court ruled that “a jury’s verdict of

acquittal does not prevent the sentencing court from

considering conduct underlying the acquitted charge,

so long as that conduct has been proven by a

preponderance of the evidence.” Id. at 157. The

holding on its face seemingly provided bright-line

guidance consistent with fully effectuating 18 U.S.C.

§ 3661, which directs that “no limitation” shall be put

on the kind of evidence that a court may “receive and

consider for the purpose of imposing an appropriate

sentence.” But, the import of Watts must be viewed

through the narrow prism of the question decided by

the Court.

Watts addressed only a “very narrow” question

“regarding the interaction of the [Sentencing]

Guidelines with the Double Jeopardy Clause.”

6

Booker, 543 U.S. at 240 & n.4. See also Jones, 135 S.

Ct. at 8–9 (Scalia, J., dissenting from denial of

certiorari, joined by Thomas and Ginsburg, JJ.)

(stating that the use of acquitted conduct in

sentencing implicates the Sixth Amendment). The

Court in Watts did not address “any contention that

the sentencing enhancement had exceeded the

sentence authorized by the jury verdict in violation of

the Sixth Amendment.” Booker, 543 U.S. at 240.

The decision also preceded the sea change ushered

in by the Court’s decisions in Apprendi and Booker,

which, together, addressed the application of a

defendant’s Sixth Amendment rights under the

Sentencing Guidelines. In Apprendi, the Court held

that facts used to increase a prison sentence beyond

the statutory maximum for the crime of conviction

must be found by a jury on the basis of proof beyond a

reasonable doubt. Apprendi, 530 U.S. at 469, 490.

And, in Booker, the Court held that any application of

the Sentencing Guidelines that violates the Sixth

Amendment cannot stand. Booker, 543 U.S. at 243–

45.

But in the twenty-one years since Watts was

decided, the lower courts have deferred to a broad

reading of it and foreclosed Sixth Amendment

challenges to the use of acquitted conduct to enhance

a defendant’s sentence in ways contrary to the

findings of a jury.

7

A.

Petitioner’s case casts in stark relief

the grave constitutional concerns

that can arise from a judge’s use of

acquitted conduct at sentencing.

Petitioner’s case provides an ideal and

straightforward opportunity to set straight Watts’

import. Indeed, petitioner’s case is much like the

“stylized” hypotheticals proposed by Justice Scalia to

demonstrate sentences “premised on a judge’s finding

some fact [in violation of the Sixth Amendment].”

Rita v. United States, 551 U.S. 338, 371 (2007) (Scalia,

J., concurring in part and concurring in the

judgment).

Justice Scalia’s concurrence in Rita explained the

dramatic extent to which a sentencing judge’s fact

finding under the preponderance of the evidence

standard

can

unconstitutionally

increase

a

defendant’s sentence and undermine the role of the

jury. He illustrated his point by taking the example

of a hypothetical defendant convicted of robbery

facing a possible sentence of 33 to 41 months under

the Sentencing Guidelines. Rita, 551 U.S. at 371–72.

But, at sentencing, the judge recognizes additional

aggravating facts not found by the jury, including—

“that a firearm was discharged, that a victim incurred

serious bodily injury, and that more than $5 million

was stolen . . . .” Id. The judge’s findings yield a

sentencing range of 235 to 293 months—six times or

more than what it would have been based solely on

the jury’s robbery conviction without the judge-found

facts enhancing the sentence. Id. Justice Scalia

concluded that, as the judge-found facts “are the

legally essential predicate for his imposition of the

8

293–month sentence . . . , the 293–month sentence . . .

would surely be reversed as unreasonably excessive.”

Id.

The facts in the petitioner’s case are strikingly

similar. The facts underlying the jury’s conviction

yielded a sentencing range of 24 to 30 months. See

Pet. App. at 5. The judge-found facts regarding bodily

injury and use of a dangerous weapon—facts on which

the jury acquitted petitioner on a second charge—

inflated the Guidelines range to 77 to 96 months, and

the court imposed the statutory maximum of 96

months. Id. at 41a; 18 U.S.C. § 111(a). Id. These

judge-found facts mirror the aggravating facts posed

in Justice Scalia’s Rita hypothetical with one

important, and more troubling, difference. In the Rita

hypothetical, a jury did not find the aggravating facts.

In petitioner’s case, the jury acquitted him on the

charge related to them.

The district court left no doubt in petitioner’s case

that it used acquitted conduct as a predicate for the

sentence it imposed. See Pet. App. at 41a (“So you’re

at 77 to 96 months. And the statutory maximum is

eight years . . . . I’m going to sentence you at the high

end to the statutory maximum penalty which is 96

months in custody.”) (emphasis added). And the court

not only went beyond using the acquitted conduct to

sentence the petitioner to the high end of the

Guidelines range for the offense of which he was

convicted by the jury, using only the facts underlying

that verdict. It took an additional leap to shift the

Guidelines range applicable to his conviction to the 77

to 96 month range applicable to the charge of which

he was acquitted and delivered the maximum 969

month sentence. See id.; id. at 5. That sentence more

than tripled the length of incarceration recommended

by the Guidelines for the crime of which the jury

convicted petitioner, without enhancements based on

judge-found facts the jury had rejected.

Justice Scalia, joined by Justices Thomas and

Ginsburg, expressed concern about the very kind of

result presented by this petition in a dissent from the

Court’s prior denial of certiorari in a similar case.

There, the petitioners had been convicted of

distributing small amounts of drugs and acquitted on

charges of conspiring to distribute drugs. Jones, 135

S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg,

JJ., dissenting from denial of certiorari).

The

sentencing judge, however, found that they had

conspired to distribute drugs and imposed sentences

that were many times longer than those the

Guidelines would otherwise have recommended. Id.

In his dissent, Justice Scalia observed that the facts

presented by that petition were “particularly

appealing . . . because not only did no jury convict

these defendants of the offense the sentencing judge

thought them guilty of, but a jury acquitted them of

that offense.” Id.

The petitioner’s sentence here is a startling and

transparent example of judicial fact-finding usurping

the jury’s duty to assess the proof of each element of

an offense. And it also potently demonstrates the

dramatic increase in a defendant’s sentence that can

result.

10

B.

This case presents no procedural obstacles.

There are no procedural obstacles in petitioner’s

case that would prevent the Court from addressing

the Sixth Amendment violation that is squarely

presented. The petitioner’s brief recites that a clear

record of his objections was established in the

sentencing and appellate proceedings. Pet. App. at 5–

6, 11a–23a, 29a. And the proceedings below are not

encumbered with prior complex appeals, multiple

defendants or sentences, or other questions that

muddy the waters. Petitioner’s case therefore is the

ideal vehicle to “put an end to the unbroken string of

cases disregarding the Sixth Amendment.” Jones, 135

S. Ct. at 9.

II.

THE FIFTH CIRCUIT AND OTHER

COURTS OF APPEALS HAVE REJECTED

PRIOR SIXTH AMENDMENT CHALLENGES IN DEFERENCE TO WATTS RATHER THAN ON THE MERITS.

The courts of appeals for at least nine circuits

have relied on Watts and other precedent to affirm

that 18 U.S.C. § 3661 wholly permits the use of

evidence of acquitted conduct at sentencing. But the

courts’ uniformity reflects adherence to Watts, not the

rejection of the possible merits of a Sixth Amendment

challenge to § 3661’s application.

Some jurists,

including Justices of this Court, have explicitly called

upon the Court to address whether Watts precludes

further constitutional challenges to § 3661. Those

calls have been echoed by scholars and those in the

bar.

11

A.

The lower courts’ deference to Watts

conflicts with this Court’s Sixth

Amendment jurisprudence.

At least nine circuit courts of appeals have invoked Watts to preclude Sixth Amendment challenges

to sentence enhancements based on acquitted conduct

despite this Court’s more recent Sixth Amendment jurisprudence (discussed infra, section III.A). 3 Watts,

however, was not a Sixth Amendment case. The

Court issued its per curiam decision on narrow Double

Jeopardy grounds, as this Court observed in Booker,

543 U.S. at 240 & n.4.

The continued vitality of Watts’ broad interpretation may reflect this Court’s instruction that “[i]f a

precedent of this Court has direct application in a

case, yet appears to rest on reasons rejected in some

other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.”

Rodriguez de Quidia v. Shearson/American Express,

3 See e.g., White, 551 F.3d at 383–84; Mercado, 474 F.3d at 657

(“[The]core principle of Watts lives on and [a] district court [may]

constitutionally consider . . . acquitted conduct.”); United States

v. Dorcely, 454 F.3d 366, 371–72 (D.C. Cir. 2006); Gobbi, 471 F.3d

at 314 (“Post-Booker, the law has not changed . . . ; acquitted conduct, if proved by a preponderance of the evidence, still may form

the basis for a sentencing enhancement.”); United States v.

Jones, 194 F. App’x 196, 197–98 (5th Cir. 2006); United States v.

Hayward, 177 F. App’x 214, 215 (3d Cir. 2006); United States v.

Azhworth, 139 F. App’x. 525, 527 (4th Cir. 2005) (per curiam);

United States v. Price, 418 F.3d 771, 787–88 (7th Cir. 2005);

United States v. Vaughn, 430 F.3d 518, 526 (2d Cir. 2005)

(“[D]istrict courts may find facts relevant to sentencing by a preponderance of the evidence, even where the jury acquitted the

defendant of that conduct . . . .”).

12

Inc., 490 U.S. 477, 484 (1989). Only this Court can lift

the implicit seal of approval that Watts extended to

the unmitigated use of acquitted conduct to enhance

criminal sentences.

Justice Scalia recognized as much. In a 2014 dissent from a denial of certiorari in which Justices

Thomas and Ginsburg joined, Justice Scalia observed,

“the Courts of Appeals have uniformly taken our continuing silence to suggest that the Constitution does

permit otherwise unreasonable sentences supported

by judicial factfinding, so long as they are within the

statutory range.” Jones, 135 S. Ct. at 9 (Scalia, J., dissenting from denial of certiorari, joined by Thomas

and Ginsburg, JJ.).

B.

Several jurists (including Justices

of this Court), practitioners, and

scholars have written disapprovingly of the overextension of Watts.

The suggestion that this Court should grant certiorari in a case such as this one to properly limit Watts

is not new. A number of jurists (including several current and former Justices) have called attention to the

need for guidance from the Court. And many in the

bar and academia have argued that imposing enhanced sentences based upon facts not found by a jury

deprives defendants of their Sixth Amendment rights.

While on the D.C. Circuit, then-Judge Kavanaugh

wrote several times of his “concern about the use of

acquitted conduct at sentencing.” Bell, 808 F.3d at

927 (Kavanaugh, J., concurring in the denial of rehearing en banc); see also United States v. Settles, 530

F.3d 920, 923–24 (D.C. Cir. 2008) (“[W]e understand

13

why defendants find it unfair for district courts to rely

on acquitted conduct when imposing a sentence . . . .”);

United States v. Henry, 472 F.3d 910, 918–22 (D.C.

Cir. 2007) (Kavanaugh, J., concurring). In 2015, thenJudge Kavanaugh encouraged district court judges to

consider rejecting the use of acquitted conduct in sentencing, even if currently prevailing law does not forbid its use: “[E]ven in the absence of a change of course

by the Supreme Court, or action by Congress or the

Sentencing Commission, federal district judges have

power in individual cases to disclaim reliance on acquitted or uncharged conduct.” Bell, 808 F.3d at 928.

Then-Judge Gorsuch explained in a 2014 opinion

that “[i]t is far from certain whether the Constitution

allows” a judge to “increase a defendant’s sentence

(within the statutorily authorized range) based on

facts the judge finds without the aid of a jury or the

defendant’s consent.” Sabillon-Umana, 772 F.3d at

1331. But the defendant-appellant in that case did

not challenge the district court’s constitutional authority to use judicially found facts at sentencing. Id.

Dissenting opinions in Watts also raised concerns

about the possible legacy that the decision could leave.

Justice Stevens declared that the Court’s holding compelled a “perverse result.” Watts, 519 U.S. at 164 (Stevens, J., dissenting). And he lamented that the Court

did so via a per curiam order, “without hearing oral

argument or allowing the parties to fully brief the issues.” Id. In a separate dissent, Justice Kennedy observed that the Court’s “per curiam opinion shows

hesitation in confronting the distinction between uncharged conduct and conduct related to a charge for

which the defendant was acquitted.” Watts, 519 U.S.

14

at 170 (Kennedy, J., dissenting). And he admonished

that the issue “ought to be confronted by a reasoned

course of argument, not by shrugging it off.” Id.

And, in 2014, Justice Scalia authored a compelling

dissent from this Court’s denial of certiorari in Jones,

observing that “any fact necessary to prevent a sentence from being substantively unreasonable—

thereby exposing the defendant to the longer sentence—is an element that must be either admitted by

the defendant or found by the jury. It may not be found

by a judge.” 135 S. Ct. at 8 (Scalia, J., dissenting from

denial of certiorari, joined by Thomas and Ginsburg,

JJ.).

Though constrained by the precedential value conferred to Watts and related cases, numerous judges on

the courts of appeals have stated that Watts should be

revisited because the Sixth Amendment does not permit a sentence to be extended by a judge’s independent finding of facts underlying the acquitted offense.

Judge Millett of the Court of Appeals for the District of Columbia Circuit, for example, delivered a concurrence in Bell, one of the decisions in which thenJudge Kavanaugh addressed this issue. Judge Millett

squarely asked this Court to halt the incursion on the

Sixth Amendment under Watts: “For multiple reasons, the time is ripe for the Supreme Court to resolve

the contradictions in Sixth Amendment and sentencing precedent, and to do so in a manner that ensures

that a jury’s judgment of acquittal will safeguard liberty as certainly as a jury’s judgment of conviction

permits its deprivation.” Bell, 808 F.3d at 929 (Millett, J., concurring in the denial of rehearing en banc).

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Judge Millett explained that the existing jurisprudence allowing sentencing based on acquitted conduct

threatened the “foundational role of the jury” as “neutral arbiter between the defendant and a government

bent on depriving him of his liberty.” Id.

Judge Millett also challenged the argument that

as long as a sentence does not exceed the statutory

maximum, a defendant is only being sentenced for the

crime he committed. Id. at 931. She explained that

the argument “blinks reality when, as here, the sentence imposed so far exceeds the Guidelines range

warranted for the crime of conviction itself that the

sentence would likely be substantively unreasonable

unless the acquitted conduct is punished too.” Id. at

392. She concluded that this Court’s post-Watts precedent “casts substantial doubt on the continuing vitality of that categorical rule [that a sentencing judge

may consider acquitted conduct], at least when acquitted conduct causes a dramatic and otherwise substantively unreasonable increase in a sentence.” Id.

In United States v. Faust, 456 F.3d 1342, 1349

(11th Cir. 2006) (Barkett, J., concurring specially),

Judge Barkett of the Eleventh Circuit “specially” filed

a concurring opinion to state emphatically that he was

bound by precedent with which he disagreed to uphold

the defendant-appellant’s sentence. Judge Barkett

explained, “I strongly believe this precedent is incorrect, and that sentence enhancements based on acquitted conduct are unconstitutional under the Sixth

Amendment, as well as the Due Process Clause of the

Fifth Amendment.” Id.

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Judge Bright of the Eighth Circuit, like Judge Millett, has called for the Court to address the import of

the Sixth Amendment in sentencing based on acquitted conduct. “We must end the pernicious practice of

imprisoning a defendant for crimes that a jury found

he did not commit. It is now incumbent on the Supreme Court to correct this injustice.” Papakee, 573

F.3d at 577–78 (Bright, J., concurring); see also United

States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008)

(Bright, J., concurring). In 2016, Judge Bright further

called attention to the “[m]any federal judges [who]

have expressed the view that the use of acquitted conduct to enhance a defendant’s sentence should be

deemed to violate the Sixth Amendment and the Due

Process Clause of the Fifth Amendment.” United

States v. Lasley, 832 F.3d 910, 921 (8th Cir. 2016)

(Bright, J., dissenting) (collecting cases), cert. denied,

137 S. Ct. 823, 196 L. Ed. 2d 608 (2007).

Scholars and practitioners also have denounced

the practice of sentencing based on acquitted conduct

as a violation of Sixth Amendment rights and have

called for an end to the lower courts’ overextension of

Watts. See, e.g., 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, 3 & n.15 (2016) (collecting comments) (“Several

commentators have argued that the use of acquitted

conduct cannot withstand Sixth Amendment scrutiny

in the wake of the Apprendi line of cases.”); Lucius T.

Outlaw III, Giving an Acquittal Its Due: Why a Quartet of Sixth Amendment Cases Means the End of

United States v. Watts and Acquitted Conduct Sentencing, 5 U. Denv. Crim. L. Rev 173, 194 (2015) (“For

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too long, courts have rested on Watts to justify this invidious practice [of acquitted conduct sentencing].”);

James J. Bilsborrow, Sentencing Acquitted Conduct to

the Post-Booker Dustbin, 49 Wm. & Mary L. Rev. 289,

321 (2007) (“[A]s both a constitutional matter and a

normative matter the consideration of acquitted conduct at sentencing should be prohibited and Watts

should be explicitly overruled.”); Erica K. Beutler, A

Look at the Use of Acquitted Conduct in Sentencing,

88 J. Crim. L. & Criminology 809, 846 (1998) (“The

use of acquitted conduct in sentencing raises matters

of constitutional magnitude which the Court should

have addressed.”); Brief for Law Professor Douglas A.

Berman as Amicus Curiae Supporting of Petitioners

at 6, Jones, 135 S. Ct. 8 (No. 13-10026) (June 26, 2014)

(“The Sixth Amendment’s essential check on government powers is eviscerated if Guideline ranges can be

significantly enhanced by jury-rejected facts.”).

III.

THE BROAD LANGUAGE OF 18 U.S.C.

§ 3661

AND

THE

SENTENCING

GUIDELINES NOTWITHSTANDING, THE

SIXTH

AMENDMENT

FORBIDS

EXTENDING A SENTENCE BASED ON

ACQUITTED CONDUCT.

Though 18 U.S.C. § 3661 and the Sentencing

Guidelines grant broad discretion to sentencing

judges, the Sixth Amendment nonetheless prohibits

judges from using acquitted conduct to extend a

criminal sentence.

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A.

The Sixth Amendment forbids sentencing based on conduct for which

a defendant was acquitted.

Under this Court’s post-Apprendi, Sixth

Amendment jurisprudence, there can be no doubt that

an enhanced sentence based on acquitted conduct

violates the Sixth Amendment. In Apprendi, the

Court held that any “facts that increase the prescribed

range of penalties to which a criminal defendant is

exposed” are essential elements of a crime and that

the Sixth Amendment guarantees defendants the

right to have a jury find those facts beyond a

reasonable doubt.

Apprendi, 530 U.S. at 490.

Apprendi made clear that a “fact that increases the

penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury.” Id. The

Court further expounded that principle in Blakely v.

Washington, 542 U.S. 296 (2004), and Alleyne v.

United States, 570 U.S. 99 (2013).

In Blakely, the petitioner pleaded guilty to a crime

with a 53-month statutory maximum under state law,

but the sentencing judge imposed a 90-month

sentence after finding facts “neither admitted by

petitioner nor found by a jury” to shift that maximum.

Id. at 303. The Court applied Apprendi’s rationale to

reject the sentence, holding that under the Sixth

Amendment, “every defendant has the right to insist

that the prosecutor prove to a jury all facts legally

essential to the punishment.” Blakely, 542 U.S. at

313. The Court stated that its ruling rested upon “the

need to give intelligible content to the right of jury

trial.” Id. at 305–06.

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There are only two meaningful Sixth Amendment

differences between Blakely and this case. First, a

jury acquitted petitioner on the charge related to the

allegation for which his sentence was extended. Pet.

App. 4–6. In Blakely, the defendant pleaded guilty to

one charge and admitted facts underlying it. 542 U.S.

at 298–99. But it appears, based on a three-day

hearing and thirty-two findings of facts made by the

sentencing judge, that there was every reason to

believe Blakely committed the other bad acts for

which his sentence was enhanced. See id. at 300.

Second, the Blakely sentencing judge used judicial

fact finding to shift the state statutory maximum,

whereas the sentencing judge in petitioner’s case

shifted the Federal Guidelines range. Id. at 300–01;

Pet. App. 5–6.

In Alleyne, the Court held that a fact that

increases a mandatory-minimum sentence is an

essential element that jurors must find beyond a

reasonable doubt. 570 U.S. 99, 114–15 (2013). The

Court explained: “[w]hen a finding of fact alters the

legally prescribed punishment so as to aggravate it,

the fact necessarily forms a constituent part of a new

offense and must be submitted to the jury. It is no

answer to say that the defendant could have received

the same sentence with or without that fact.” Id.

(emphasis added). The Court further illustrated: “[i]t

is obvious, for example, that a defendant could not be

convicted and sentenced for assault, if the jury only

finds the facts for larceny, even if the punishments

prescribed for each crime are identical . . . . Similarly,

because the fact of brandishing aggravates the legally

prescribed range of allowable sentences, it constitutes

an element of a separate, aggravated offense that

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must be found by the jury, regardless of what sentence

the defendant might have received if a different range

had been applicable.” Id. at 115.

The Court’s illustrations bear directly upon the

core issues of the petition. The facts that the judge

relied upon in sentencing the petitioner—facts that

the jury found not to be proven beyond a reasonable

doubt—were used to inflate petitioner’s prescribed

sentencing range. But as this Court has made clear,

the fact that petitioner “could have received the same

sentence with or without that fact” is no remedy to the

constitutional violation. Id.. The Court’s postApprendi Sixth Amendment jurisprudence cannot be

reconciled with the practice of judges relying upon

acquitted conduct in sentencing.

B.

The broad language of 18 U.S.C.

§ 3661 and the Sentencing Guidelines do not lie beyond the Sixth

Amendment’s purview.

In Watts, the majority began its analysis with the

statutory language of 18 U.S.C. § 3661, which states

that “[n]o limitation shall be placed on the information” a sentencing court can receive or consider to

determine an appropriate sentence.” Watts, 519 U.S.

at 151 (quoting 18 U.S.C. § 3661). But the plain language of the statute must be applied consistent with

constitutional protections. See United States ex rel.

Attorney General v. Delaware & Hudson Co., 213 U.S.

366, 408 (1909) (“[W]here a statute is susceptible of

two constructions, by one of which grave and doubtful

constitutional questions arise and by the other of

which such questions are avoided, our duty is to adopt

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the latter.”); Jones v. United States, 529 U.S. 848, 857

(2000) (same). To hold otherwise would allow the statute to stand above the Constitution. 4

A judge’s discretion and latitude to consider a

broad range of factors as prescribed by § 3661 can be

retained, but it cannot transgress a defendant’s constitutional rights.

CONCLUSION

For the foregoing reasons, and those set forth in

the petition for a writ of certiorari, the Court should

grant the petition.

This Court has repeatedly subjected sentencing practices to

constitutional scrutiny. See, e.g., Apprendi, 530 U.S. at 490;

Gardner v. Florida, 430 U.S. 349, 358 (1977) (“[T]he sentencing

process, as well as the trial itself, must satisfy the requirements

of the Due Process Clause.”); Townsend v. Burke, 334 U.S. 736,

740–41 (1948), (finding sentencing on the basis of assumptions

concerning a defendant’s criminal record “which were materially

untrue . . . . is inconsistent with due process of law”).

4

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Respectfully submitted,

Jeffrey T. Green

Co-Chair, Supreme Court

Amicus Committee

NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE

LAWYERS

1625 Eye Street, NW

Washington, DC 20006

Kayleigh Scalzo

Counsel of Record

Michael J. Fanelli

Matthew V. Miller

Thomas Blackmon

COVINGTON & BURLING LLP

One CityCenter

850 Tenth Street, NW

Washington, DC 20001

kscalzo@cov.com

(202) 662-6000

Counsel for Amicus Curiae

December 20, 2018

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