Opposition Brief — Michigan, Petitioner v. Gerald Raynard Fuller

No. 19-1453

In the Supreme Court of the United States

MICHIGAN,

Petitioner,

v.

FULLER,

Respondent.

On Petition for a Writ of Certiorari to

the Michigan Court of Appeals

BRIEF IN OPPOSITION

DOUGLAS W. BAKER

MICHAEL B. KIMBERLY

Michigan State Appellate Counsel of Record

Defender Office

PAUL W. HUGHES

3031 W. Grand Blvd.

McDermott Will & Emery LLP

Detroit, MI 48202

500 North Capitol Street NW

(313) 256-9833

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Respondent

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Introduction .................................................................1

Statement ....................................................................1

A. Factual background ..........................................1

B. Procedural background ....................................2

Reasons for Denying the Petition ...............................4

A. The Court lacks jurisdiction .............................4

B. The question presented does not merit

this Court’s attention .......................................7

1. Sentencing variations are an accepted

feature of our federalist system ..................8

2. Variability in sentencing outcomes

would remain regardless of review ...........11

C. The decision below is correct ..........................13

1. Due process prohibits the use of

acquitted conduct at sentencing ...............13

2. The Sixth Amendment prohibits the

use of acquitted conduct at sentencing.....16

3. Watts and McMillan do not control ..........17

Conclusion .................................................................18

ii

TABLE OF AUTHORITIES

Cases

AFT Michigan v. State,

866 N.W.2d 782 (Mich. 2015) .............................. 13

Alleyne v. United States,

570 U.S. 99 (2013) ................................................ 16

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................ 10, 15, 16, 17

Asaro v. United States,

140 S. Ct. 1104 (2020) ............................................ 7

Bateman v. Arizona,

429 U.S. 1302 (1976) .......................................... 4, 5

Bell v. United States,

137 S. Ct. 37 (2016) ................................................ 8

Berman v. United States,

302 U.S. 211 (1937) ................................................ 5

Bishop v. State,

486 S.E.2d 887 (Ga. 1997) ................................... 11

Brinegar v. United States,

338 U.S. 160 (1949) .............................................. 14

Burton v. Stewart,

549 U.S. 147 (2007) ................................................ 5

Ciavarella v. United States,

571 U.S. 1239 (2014) .............................................. 8

City News & Novelty, Inc. v. City of Waukesha,

531 U.S. 278 (2001) ................................................ 6

Clark v. Missouri,

549 U.S. 1167 (2007) .............................................. 8

Cooper Indus., Inc. v. Aviall Servs., Inc.,

543 U.S. 157 (2004) ................................................ 7

iii

Cases—continued

County of Los Angeles v. Davis,

440 U.S. 625 (1979) ................................................ 6

Cox Broadcasting Corp. v. Cohn,

420 U.S. 469 (1975) ............................................ 6, 7

Duncan v. Louisiana,

391 U.S. 145 (1968) ........................................ 16, 17

Edwards v. United States,

549 U.S. 1283 (2007) .............................................. 8

Ewing v. California,

538 U.S. 11 (2003) ................................................ 10

Fugitt v. State,

348 S.E.2d 451 (Ga. 1986) ................................... 11

Gresham v. Tennessee,

139 S. Ct. 2724 (2019) ............................................ 7

Harmelin v. Michigan,

501 U.S. 957 (1991) .............................................. 10

Iwuoha v. United States,

138 S. Ct. 1988 (2018) ............................................ 7

Jones v. United States,

135 S. Ct. 8 (2014) ............................................ 8, 14

Kokenis v. United States,

566 U.S. 1034 (2012) .............................................. 8

Krum v. United States,

137 S. Ct. 41 (2016) ................................................ 8

Lionetti v. United States,

558 U.S. 824 (2009) ................................................ 8

McMillan v. Pennsylvania,

477 U.S. 79 (1986) .......................................... 17, 18

Medina v. United States,

137 S. Ct. 837 (2017) .............................................. 7

iv

Cases—continued

Montana v. Imlay,

506 U.S. 5 (1992) ................................................ 5, 6

Montoya-Gaxiola v. United States,

137 S. Ct. 371 (2016) .............................................. 8

Morris v. United States,

553 U.S. 1065 (2008) .............................................. 8

Muir v. United States,

138 S. Ct. 2643 (2018) ............................................ 7

Musgrove v. United States,

139 S. Ct. 591 (2018) .............................................. 7

North Dakota State Bd. of Pharmacy v. Snyder’s

Drug Stores, Inc.,

414 U.S. 156 (1973) ................................................ 5

Oregon v. Guzek,

546 U.S. 517 (2006) ................................................ 7

Oregon v. Hass,

420 U.S. 714 (1975) .............................................. 11

Payne v. Tennessee,

501 U.S. 808 (1991) .............................................. 10

People v. Anonymous,

245 N.E.3d 924 (N.Y. 2020) ................................. 12

People v. Beck,

939 N.W.2d 213 (2019)................................. passim

People v. Black,

821 N.Y.S.2d 593 (N.Y. App. Div. 2006) ............. 11

People v. Perry,

549 N.W.2d 42 (Mich. Ct. App. 1996) .................... 6

People v. Tanner,

853 N.W.2d 653 (Mich. 2014) ........................ 12, 13

Rayyan v. United States,

139 S. Ct. 264 (2018) .............................................. 7

v

Cases—continued

Republic Nat. Gas Co. v. Oklahoma,

334 U.S. 62 (1948) .............................................. 4, 5

Roman-Oliver v. United States,

135 S. Ct. 753 (2014) .............................................. 8

Siegelman v. United States,

136 S. Ct. 798 (2016) .............................................. 8

Soto-Mendoza v. United States,

137 S. Ct. 568 (2016) .............................................. 8

State v. Cote,

530 A.2d 775 (N.H. 1987)................................. 9, 12

State v. Gibbs,

953 A.2d 439 (N.H. 2008)................................. 9, 12

State v. Kimball,

663 A.2d 634 (N.H. 1995)....................................... 9

State v. Melvin,

223 A.3d 608 (N.J. 2020)...................................... 12

State v. Paden-Battle,

234 A.3d 332 (N.J. Super. Ct. App. Div. 2020) ... 12

Thurman v. United States,

139 S. Ct. 278 (2018) .............................................. 7

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) .............................. 14

United States v. Booker,

543 U.S. 220 (2005) ........................................ 17, 18

United States v. Gaudin,

515 U.S. 506 (1995) ........................................ 13, 16

United States v. Haymond,

139 S. Ct. 2369 (2019) .......................................... 18

United States v. Watts,

519 U.S. 148 (1997) .................................. 12, 17, 18

vi

Cases—continued

Villarreal v. United States,

139 S. Ct. 592 (2018) .............................................. 7

Webster v. Fall,

266 U.S. 507 (1925) ................................................ 7

In re Winship,

397 U.S. 358 (1970) .............................. 3, 13, 14, 15

Statutes

28 U.S.C. 1257(a)................................................. 4, 5, 6

MCL

750.81(1) ................................................................. 2

750.81d(1) ........................................................... 2, 3

750.520g(1) ............................................................. 2

750.520g(2) ............................................................. 2

769.12(1)(c) ............................................................. 3

770.12 ..................................................................... 6

Other Authorities

Act, Black’s Law Dictionary (11th ed. 2019) .............. 5

Alison Lawrence, Nat’l Conference of State

Legislatures, Making Sense of Sentencing:

State Systems and Policies (2015) ..................... 8, 9

Clarissa Byrne Hessick & F. Andrew Hessick,

Recognizing Constitutional Rights at

Sentencing, 99 Calif. L. Rev. 47 (2011) ......... 14, 15

2 J. Story, Commentaries on the Constitution

of the United States (4th ed. 1873) ..................... 16

United States Sentencing Commission, Results of

Survey of United States District Judges January

2010 Through March 2010 (June 2010) .............. 15

4 William Blackstone, Commentaries on the

Laws of England (Cooley ed. 1899) ..................... 17

INTRODUCTION

The petition in this case is yet another in a string

of two dozen recent denials of review of the question

whether the Federal Constitution permits consideration of acquitted conduct at sentencing.

The State’s half-baked, four-page argument in

favor of certiorari fails to grapple with any of the

obvious obstacles to further review in this case—among

them, that (1) the Court lacks jurisdiction because the

judgment below is non-final, and (2) sentencing policy

will vary from State to State regardless of the question

presented, virtually guaranteeing that review in this

case would make no practical difference. Just as it has

in the litany of previous cases presenting the same

question, the Court should deny review.

STATEMENT

A. Factual background

Respondent Gerald Fuller’s car veered off the road

toward a woman later identified as Eva Betts. Pet.

App. 2a. Respondent had hit a pothole; when he got out

to check for damage on the front end of his car, Betts

began to scream at him, called him a racial epithet,

and pushed him. 6/25/18 Trial Tr. 28-30. Respondent

lost his cool, grabbed Betts by the collar, and shook

her. Id. at 29. A struggle ensued, and both parties fell

to the ground. Id. at 31. Two cars pulled up as Betts

yelled for help. Pet. App. 2a.

In Betts’s telling of the encounter, respondent

intended to rape her. Ibid. To support that story, Betts

observed that respondent’s pants were down, about

mid-thigh, when he stood up following their physical

encounter. Ibid.

Respondent’s version of the story was that he and

Betts had merely gotten into an altercation. As for his

pants, he claimed that he always wore them loose and

2

low, and that they had simply fallen down during the

tussle. 6/25/18 Trial Tr. 33-34. He strongly denied

attempting a sexually assault. Id. at 36.

Once the two cars arrived, respondent returned to

his own vehicle and drove away. Pet. App. 2a. Betts got

into one of the other cars that had arrived on the scene.

Ibid. They pursued respondent, who ultimately stopped

his car at a liquor store parking lot and ran away on

foot. Ibid. When police arrived, respondent initially

resisted officers’ instructions before being taken into

custody. Pet. App. 2a-3a. An unopened condom was

seen lying on the driver’s seat of Respondent’s vehicle.

Id. at 3a.

B. Procedural background

Wayne County prosecutors charged respondent

with two sexual assault offenses: one count of assault

with intent to commit criminal sexual conduct involving sexual penetration, in violation of MCL

750.520g(1); and one count of assault with intent to

commit second-degree criminal sexual conduct, in

violation of MCL 750.520g(2). Pet. App. 3a. Prosecutors

also charged respondent with one count of “resisting or

obstructing” a police officer in violation of MCL

750.81d(1). Ibid.

The case went to trial. In closing argument, respondent’s attorney conceded respondent’s guilt on the

lesser-included charge of simple assault and the

resisting arrest charge, but asked the jury to acquit on

the more serious sex-assault charges. 6/25/18 Trial Tr.

198-199.

The jury agreed. They returned a verdict of not

guilty on the two sex offenses and found him guilty of

two counts of misdemeanor assault, a lesser-included

offense carrying a maximum term of imprisonment of

93 days in jail. Pet. App. 1a, 3a; see MCL 750.81(1).

3

The jury also convicted respondent of the “resisting or

obstructing” charge, which ordinarily carries a

maximum sentence of two years. Pet. App. 3a; see MCL

750.81d(1). Under Michigan’s habitual offender law,

however, Respondent’s obstruction conviction meant he

faced up to fifteen years in state prison. Pet. App. 1a;

see MCL 769.12(1)(c).

The guideline sentence for Respondent on the

resisting arrest charge was 5 to 46 months. 7/30/18

Sentencing Tr. 50. The trial court, however, imposed a

sentence nearly four times as long: 58 to 180 months in

the Michigan Department of Corrections. Ibid. The

trial court justified its upward departure in part by

finding, by a preponderance of the evidence, that Mr.

Fuller was, in fact, guilty of the sexual assault charges,

notwithstanding the jury’s acquittal on those charges.

Pet. App. 3a.

Respondent appealed to the Michigan intermediate

appellate court. While the appeal was pending, the

Michigan Supreme Court decided People v. Beck, 939

N.W.2d 213 (2019), which held that the use of acquitted conduct evidence at sentencing violates a defendant’s due process rights.

Beck reasoned that due process under the Fourteenth Amendment “includes the presumption of

innocence—that bedrock ‘axiomatic and elementary’

principle whose ‘enforcement lies at the foundation

* * * of our criminal law.’” 939 N.W.2d at 219 (quoting

In re Winship, 397 U.S. 358, 363 (1970)). The court

observed further that the presumption remains intact

when the jury acquits the defendant of a crime. Id. at

225. The practice of punishing a defendant for conduct

for which the jury acquitted, the Court concluded, is

“fundamentally inconsistent with the presumption of

innocence.” Ibid.

4

Respondent argued that Beck controlled the outcome in his case, and that it prevented the trial court

below from considering the acquitted conduct evidence

relating to the sexual assault charges. Pet. App. 3a-4a.

The Michigan Court of Appeals agreed and vacated

respondent’s sentence. Pet. App. 4a-5a. It remanded

the case for resentencing. Ibid. No court has stayed the

pending resentencing, and the trial court may conduct

that hearing at any time.

Michigan appealed the decision to the Michigan

Supreme Court, which denied review. Pet. App. 8a.

REASONS FOR DENYING THE PETITION

Further review is unwarranted for a host of

reasons. First, the decision below is non-final because

respondent awaits resentencing, which is a substantive, non-ministerial proceeding. Second, the holding of

the intermediate state appellate court reflects, at most,

permissible and expected variation in criminal sentencing jurisprudence among the several States. This

Court cannot restore uniformity in this area of the

law—a feature, not a bug, of our federalist system.

Finally, the decision below accords with the principles

expressed in this Court’s constitutional cases. Further

review is manifestly unwarranted.

A. The Court lacks jurisdiction

The Court should deny review first and foremost

because it lacks jurisdiction.

1. For the judgment of a state court to be reviewable under Section 1257(a), the state-court judgment

must be “final.” Generally, a state-court judgment is

final only when “nothing more than a ministerial act

remains to be done” on remand. Republic Nat. Gas Co.

v. Oklahoma, 334 U.S. 62, 68 (1948); see Bateman v.

Arizona, 429 U.S. 1302, 1306 (1976) (applying general

rule).

5

Here, a resentencing proceeding is pending before a

state trial court. That matters because, in criminal

cases, “[f]inal judgment * * * means sentence,” and

“[t]he sentence is the judgment.” Burton v. Stewart,

549 U.S. 147, 156 (2007) (quoting Berman v. United

States, 302 U.S. 211, 212 (1937)). But as to respondent,

there is no sentence at all; the intermediate appellate

court vacated respondent’s sentence, and the trial court

has yet to impose a new one.

Resentencing is not ministerial. An act is ministerial when it is “performed without the independent

exercise of discretion or judgment.” Act, Black’s Law

Dictionary (11th ed. 2019). For example, mere entry of

judgment upon remand is ministerial. See Republic

Nat. Gas Co., 334 U.S. at 68; see also Bateman, 429

U.S. at 1306 (reinstating conviction is ministerial).

Here, by contrast, the pending state court proceeding is

a full-on resentencing, which implicates the trial

court’s judgment and discretion. Respondent’s

resentencing is therefore is not ministerial, and the

judgment is not final within the meaning of Section

1257(a).

2. As this case and others like it aptly demonstrate,

Section 1257(a)’s finality requirement is a prophylactic

against advisory opinions. See North Dakota State Bd.

of Pharmacy v. Snyder’s Drug Stores, Inc., 414 U.S.

156, 159 (1973).

This Court’s dismissal in Montana v. Imlay, 506

U.S. 5 (1992), demonstrates the point. That case presented a question concerning constitutional constraints

on conditions of parole. Id. at 6 (White, J., dissenting).

But while the case was pending before this Court, the

state trial court resentenced the respondent to the

same sentence it had imposed before. Id. at 5-6

(Stevens, J., concurring). “Thus, no matter which party

might prevail in this Court, the respondent’s term of

6

imprisonment [would] be the same.” Id. at 6. The Court

thus dismissed the petition as having been improvidently granted. Id. at 5.

The same outcome is possible here. The state trial

court is free to conduct a resentencing at any time.

Although the sentencing judge may not consider

acquitted conduct in doing so, he might nevertheless

impose the same sentence on alternative grounds.

Were the original sentence to be reimposed, the parties

would lack “a legally cognizable interest in the

outcome” of this Court’s review. City News & Novelty,

Inc. v. City of Waukesha, 531 U.S. 278, 283 (2001)

(quoting County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979)) (dismissing petition). The same risk that

was present in Imlay is therefore present here.

3. To be sure, this Court has recognized four exceptions to a strict reading of Section 1257(a)’s finality requirement. See Cox Broadcasting Corp. v. Cohn, 420

U.S. 469 (1975). But petitioner does not argue that any

apply here—and none do.

As we have just explained, “the outcome of further

proceedings” is not “preordained.” 420 U.S. at 479. Nor

is this a case in which the federal issue may “survive

and require decision regardless of the outcome of

future state-court proceedings.” Id. at 480. If the

sentencing court imposes the same sentence, then the

federal issue will be moot. This also is not a case in

which “later review of the federal issue cannot be had,

whatever the ultimate outcome of the case.” Id. at 481.

It is well settled that “[t]he prosecution has * * * the

authority to appeal as of right the sentence of a

criminal defendant.” People v. Perry, 549 N.W.2d 42, 43

(Mich. Ct. App. 1996); see also MCL 770.12 (providing

the right). Finally, it cannot be said that allowing the

state court’s judgment to stand will “seriously erode

federal policy.” Cox Broadcasting Corp., 420 U.S. at

7

483. There is no federal policy requiring the consideration of acquitted conduct at sentencing. 1

In short, this case does not fall into any of the four

Cox exceptions, and the Court lacks Section 1257 jurisdiction. For that reason alone, the petition should be

denied.

B. The question presented does not merit this

Court’s attention

Even if the Court had jurisdiction, the question

presented would not merit the Court’s attention. States

have vastly different sentencing schemes from one to

another. Whether a State permits judges to consider

acquitted conduct at sentencing is an inconsequential

feature in that inherently patchwork system. And

because some States already prohibit acquitted conduct

on state law grounds, uniformity is not possible on the

question presented. The Court has denied at least two

dozen recent petitions presenting the same or similar

questions. 2 The same outcome is warranted here.

The Court, in Oregon v. Guzek, 546 U.S. 517 (2006), reviewed a

state court decision notwithstanding a pending resentencing

hearing. But by all appearances, the finality issue was neither

raised by respondent nor considered by the Court in that case.

“Questions which merely lurk in the record, neither brought to the

attention of the court nor ruled upon, are not to be considered as

having been so decided as to constitute precedents.” Cooper

Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (quoting

Webster v. Fall, 266 U.S. 507, 511 (1925)).

1

See Asaro v. United States, 140 S. Ct. 1104 (2020) (No. 19-107);

Gresham v. Tennessee, 139 S. Ct. 2724 (2019) (No. 18-1359);

Villarreal v. United States, 139 S. Ct. 592 (2018) (No. 18-5468);

Musgrove v. United States, 139 S. Ct. 591 (2018) (No. 18-5121);

Thurman v. United States, 139 S. Ct. 278 (2018) (No. 18-5528);

Rayyan v. United States, 139 S. Ct. 264 (2018) (No. 18-5390); Muir

v. United States, 138 S. Ct. 2643 (2018) (No. 17-8893); Iwuoha v.

United States, 138 S. Ct. 1988 (2018) (No. 17-7295); Medina v.

2

8

1. Sentencing variations are an accepted

feature of our federalist system

It is an accepted feature of our federalist system

that penological policy, including sentencing policy,

varies from State to State. Whether judges may consider acquitted conduct at the sentencing phase is just

one feature among many that contribute to that

variability, which would persist regardless of this

Court’s review of the question presented.

a. Sentencing practices vary significantly from

State to State. Some 33 States use indeterminate

sentencing schemes in which parole boards determine

the ultimate sentence in the midst of incarceration.

Alison Lawrence, Nat’l Conference of State Legislatures, Making Sense of Sentencing: State Systems

and Policies 4 (2015), perma.cc/6789-8LHE. In contrast, 17 States and the District of Columbia use

primarily determinate schemes, under which the

sentence is relatively fixed from the point of judicial

sentencing. Ibid.

Within those two broad categories, about half of

States add a “structured component,” such as sentenUnited States, 137 S. Ct. 837 (2017) (No. 16-766); Soto-Mendoza v.

United States, 137 S. Ct. 568 (2016) (No. 16-5390); MontoyaGaxiola v. United States, 137 S. Ct. 371 (2016) (No. 15-9323);

Krum v. United States, 137 S. Ct. 41 (2016) (No. 15-8875); Bell v.

United States, 137 S. Ct. 37 (2016) (No. 15-8606); Siegelman v.

United States, 136 S. Ct. 798 (2016) (No. 15-353); Roman-Oliver v.

United States, 135 S. Ct. 753 (2014) (No. 14-5431); Jones v. United

States, 135 S. Ct. 8 (2014) (No. 13-10026); Ciavarella v. United

States, 571 U.S. 1239 (2014) (No. 13-7103); Kokenis v. United

States, 566 U.S. 1034 (2012) (No. 11-1042); Lionetti v. United

States, 558 U.S. 824 (2009) (No. 08-1523); Morris v. United States,

553 U.S. 1065 (2008) (No. 07-1094); Edwards v. United States, 549

U.S. 1283 (2007) (No. 06-8430); Clark v. Missouri, 549 U.S. 1167

(2007) (No. 06-773).

9

cing guidelines, which “provide judges guidance, within

broad sentencing ranges, on the type and length of

sentence to order.” Lawrence, supra, at 5. But these

guidelines themselves vary significantly across jurisdictions. A person with a long criminal history, for

example, faces greater penalty enhancements in some

States than in others. And these differences in sentencing practices are layered on top of differing penalties

assigned to the same fundamental conduct.

Whether or not a State permits the consideration of

acquitted conduct does not produce any additional,

appreciable variation in sentencing. Among States that

prohibit the practice, the rule has been construed

narrowly. Consider New Hampshire, which has forbidden consideration of acquitted conduct at sentencing

for more than 30 years. See State v. Cote, 530 A.2d 775,

783 (N.H. 1987). Sentencing judges there still may still

consider pending or dismissed charges. Id. at 784.

Acquitted conduct may also provide the basis for a

judge to find a good behavior violation and impose a

suspended sentence. See State v. Gibbs, 953 A.2d 439,

442 (N.H. 2008). And in one case where a trial judge

discussed the acquitted conduct, but then disclaimed

reliance on it, the New Hampshire Supreme Court

found no violation of due process. State v. Kimball, 663

A.2d 634 (N.H. 1995).

As a practical matter, sentences for similar crimes

will always vary—often dramatically—depending on

the jurisdiction in which they are committed. That is so

entirely apart from the question presented in the

petition. Indeed, it is possible that, based on unrelated

differences in state sentencing policy, a defendant

sentenced in a jurisdiction that forbids use of acquitted

conduct at sentencing would receive a longer sentence

than if he were sentenced in a jurisdiction that allows

use of acquitted conduct at sentencing. A decision of

10

this Court will have little impact on the reality of

varied sentencing.

b. None of this is new. This Court has recognized

repeatedly that, “[u]nder our constitutional system, the

primary responsibility for defining crimes against state

law, fixing punishments for the commission of these

crimes, and establishing procedures for criminal trials

rests with the States.” Payne v. Tennessee, 501 U.S.

808, 824 (1991). The Court has a “tradition of deferring

to state legislatures in making and implementing such

important [sentencing] policy decisions.” Ewing v.

California, 538 U.S. 11, 24 (2003). The Constitution

does not “mandate adoption of any one penological

theory” and state legislatures may determine what role

various justifications for punishment play in assigning

sentences to crimes. Harmelin v. Michigan, 501 U.S.

957, 999 (1991) (Kennedy, J., concurring). Indeed,

“marked divergences both in underlying theories of

sentencing and in the length of prescribed prison terms

are the inevitable, often beneficial, result of the federal

structure.” Ibid.

Such state policy decisions are, of course, “subject

to the overriding provisions of the United States

Constitution.” Payne, 501 U.S. at 824. Thus, a state

may not maintain sentencing practices that violate a

person’s federal constitutional rights. E.g., Apprendi v.

New Jersey, 530 U.S. 466, 490 (2000) (holding that

state law authorizing an increased statutory maximum

based on the judge's finding of facts by a preponderance of evidence violated the due process clause). But

within those constitutional guardrails, States have

considerable latitude to establish their own sentencing

policies and regulate the factors judges may consider.

11

2. Variability in sentencing outcomes

would remain regardless of review

Variable outcomes would persist regardless of this

Court’s intervention on the federal constitutional

question presented. Indeed, other States that petitioner says are part of the conflict have rested their

holdings on independent state law grounds. State

legislatures would also be free to restrain judges from

considering acquitted conduct at sentencing. Thus,

differences in whether judges may consider acquitted

conduct at sentencing would continue even if the Court

granted review and ruled for petitioner.

Where this Court establishes the minimum protections afforded by the Federal Constitution, a “state is

free as a matter of its own law to impose greater

restriction” on given conduct than this Court “holds to

be necessary upon federal constitutional standards.”

Oregon v. Hass, 420 U.S. 714, 719 (1975). Thus, if this

Court held that the federal Due Process Clause permits

judges to consider acquitted conduct at sentencing,

state courts would remain free to extend such protection under state common law, statutory law or constitutional law.

Some state courts already have done so. In

Georgia, for example, judges are prohibited from

relying on acquitted conduct “[i]n aggravation of the

sentence” as a matter of Georgia common law. Bishop

v. State, 486 S.E.2d 887, 897 (Ga. 1997); Fugitt v.

State, 348 S.E.2d 451, 455 (Ga. 1986) (citing collateral

estoppel). Likewise, in New York, state intermediate

appellate courts have “repeatedly held that a sentencing court may not base its sentence on crimes of which

the defendant was acquitted” as a matter of state

common law. People v. Black, 821 N.Y.S.2d 593, 596

(N.Y. App. Div. 2006) (collecting cases). Earlier this

year, the Court of Appeals of New York held that state

12

statutory law bars sentencing judges from considering

evidence presented at another trial that resulted in

acquittal. People v. Anonymous, 245 N.E.3d 924, 927

(N.Y. 2020).

A New Jersey appellate court recently reached the

same result under state constitutional law. After

holding that consideration of acquitted conduct

violated the federal due process clause, the judge

opined that “there is nothing in our jurisprudence that

suggests the New Jersey Constitution would fail to give

an acquittal the rightful place at sentencing it

deserves.” State v. Paden-Battle, 234 A.3d 332, 346

(N.J. Super. Ct. App. Div. 2020). The New Jersey

Supreme Court recently granted certiorari on the

acquitted conduct question in an unrelated case. State

v. Melvin, 223 A.3d 608 (N.J. 2020).

The New Hampshire Supreme Court has suggested

the same of its ban on acquitted-conduct sentencing.

Cote, 530 A.2d at 783. While Cote is unclear as to

whether it rests on the federal or state due process

clause, a recent opinion suggests the latter: “Cote

provides greater protection than that provided to a

defendant in United States v. Watts,” a case in which

this Court held that sentencing based on acquitted

conduct does not violate the Double Jeopardy Clause.

State v. Gibbs, 953 A.2d 439, 442 (N.H. 2008) (citing

Watts, 519 U.S. 148, 156-157 (1997)).

The Michigan court’s approach in Beck suggests it,

too, would extend protection under state constitutional

law if this Court reversed. In interpreting its own state

constitution, the Michigan Supreme Court seeks to

“determine the intent of the framers of the [Michigan]

Constitution and of the people adopting it.” People v.

Tanner, 853 N.W.2d 653, 665 (Mich. 2014) (internal

quotations omitted). While the court “rejects unprincipled creation of state constitutional rights that ex-

13

ceed their federal counterparts,” it is not bound to

construe its constitution in lockstep with the Federal

Constitution, “even where the language is identical.”

Ibid. (internal quotation omitted). The Michigan due

process clause is “often interpreted coextensively” with

the federal due process clause, but it “may, in

particular circumstances, afford protections greater

than or distinct from” the federal due process clause.

AFT Michigan v. State, 866 N.W.2d 782, 809 (Mich.

2015).

As these examples demonstrate, a decision from

this Court under the Federal Constitution would not

restore uniformity on the issue presented here—nor is

uniformity desirable under our federalist system of

government.

C.

The decision below is correct

Further review is also unwarranted because the

decision below is correct. Beck is entirely consistent

with foundational constitutional protections that are

essential to safeguarding criminal defendants from

erroneous deprivations of liberty.

1. Due process prohibits the use of

acquitted conduct at sentencing

a. Due process guarantees that no person will be

deprived of liberty without “fundamental procedural

fairness.” In re Winship, 397 U.S. 358, 372 (1970)

(Harlan, J., concurring). In the context of criminal

prosecutions, the twin pillars of due process are

(1) trial by jury, and (2) conviction only when guilt is

found beyond a reasonable doubt. E.g., United States v.

Gaudin, 515 U.S. 506, 509-510 (1995).

The long-respected rule that criminal convictions

must rest on factual findings “beyond a reasonable

doubt” reflects an understanding that allowing forfeitures of liberty upon a lesser standard introduces an

14

unacceptable risk of “dubious and unjust” incarceration. Winship, 397 U.S. at 362 (quoting Brinegar v.

United States, 338 U.S. 160, 174 (1949)). After Winship, there is no doubting that it violates fundamental

fairness to “imprison[] [a criminal defendant] for years

on the strength of the same evidence as would suffice

in a civil case.” Id. at 363.

Permitting sentencing judges to add years to criminal defendants’ sentences based on acquitted conduct—conduct that the jury did not find beyond a

reasonable doubt, but that the judge does find by a

mere preponderance of the evidence—is flatly at odds

with these principles. An acquittal “reflects the jury’s

determination that the government has failed to satisfy

the prerequisites for punishing the defendant.” Clarissa Byrne Hessick & F. Andrew Hessick, Recognizing

Constitutional Rights at Sentencing, 99 Calif. L. Rev.

47, 60 (2011). Increasing nonetheless a defendant’s

sentence based on acquitted conduct “ignores, or at

least circumvents, that determination.” Ibid.

For these reasons, Members of this Court have expressed “concern about the use of acquitted conduct at

sentencing,” which “seems a dubious infringement of

the rights to due process and to a jury trial.” United

States v. Bell, 808 F.3d 926, 927-928 (D.C. Cir. 2015)

(Kavanaugh, J., concurring in denial of rehearing en

banc). See also Jones v. United States, 135 S. Ct. 8, 9

(2014) (Mem.) (Scalia, J., joined by Thomas, J., and

Ginsburg, J., dissenting from denial of certiorari)

(sentencing based on acquitted conduct “disregard[s]

the Sixth Amendment”).

b. The inseparability of conviction and sentencing

at the time the due process right was conceived casts

additional doubt on acquitted conduct sentencing. As

legal scholars have observed,

15

During colonial times and at the Founding, the

process of sentencing was virtually indistinguishable from the process of conviction. A

judge ordinarily did not conduct a separate

sentencing proceeding following a defendant’s

conviction; instead, most crimes carried a

particular penalty. The offense of conviction

determined the sentence, and aggravating and

mitigating factors did not alter that sentence.

Hessick & Hessick, supra, 99 Calif. L. Rev. at 51 (footnote omitted). Accord Apprendi, 530 U.S. at 478-481

(recounting the lack of distinction between conviction

and sentencing during the Founding era). Because

conviction and sentencing were a single proceeding at

the Founding, defendants received the same dueprocess protections throughout. See Hessick & Hessick,

supra, 99 Calif. L. Rev. at 51. The Framers no doubt

would be surprised to see today’s disaggregation of

conviction from sentencing, and the absence of criminal

due process protections in the latter.

“It is critical that the moral force of the criminal

law not be diluted by a standard of proof that leaves

people in doubt whether innocent men are being condemned.” Winship, 397 U.S. at 364. A defendant’s liberty is forfeited at sentencing; allowing judges to

bypass the jury’s verdict using a lower standard of

proof to impose punishment creates precisely the doubt

this Court sought to avoid. 3

A sizable number of federal judges do not seem to think this is

their proper role, either. In a United States Sentencing Commission survey of hundreds of federal district judges, eighty-four

percent responded that they do not believe acquitted conduct

ought to be considered “relevant conduct” for sentencing purposes.

United States Sentencing Commission, Results of Survey of

United States District Judges January 2010 Through March 2010

tbl.5 (June 2010), https://perma.cc/KRN3-7TH6.

3

16

2. The Sixth Amendment prohibits the use

of acquitted conduct at sentencing

The Sixth Amendment right dovetails with the Due

Process Clause right to require that every element of a

charged offense be found by a jury beyond a reasonable

doubt. See Gaudin, 515 U.S. at 510.

As “a defense against arbitrary law enforcement,”

Duncan v. Louisiana, 391 U.S. 145, 156 (1968), the

jury-trial right has long been considered “the great

bulwark of * * * civil and political liberties.” Gaudin,

515 U.S. at 511 (quoting 2 J. Story, Commentaries on

the Constitution of the United States 540-541 (4th ed.

1873)). The jury trial is intended to protect criminal

defendants from losing their liberty based solely on the

views of “the compliant, biased, or eccentric judge.”

Duncan, 391 U.S. at 156. In this way, it “reflect[s] a

fundamental decision about the exercise of official

power—a reluctance to entrust plenary powers over

the life and liberty of the citizen to one judge or a group

of judges.” Ibid. Allowing a judge to impose a sentence

that disregards the jury’s acquittal is deeply at odds

with this principle.

The Apprendi line of cases supports that conclusion. Apprendi itself rested in significant part on the

“historic link between verdict and judgment” 530 U.S.

at 482. Even in early examples of States enacting

modern sentencing ranges, “the ranges themselves

were linked to particular facts constituting the elements of the crime.” Alleyne v. United States, 570 U.S.

99, 109 (2013). And through the late 18th century, it

was “well-established practice” to “includ[e] in the

indictment, and submit[] to the jury, every fact that

was the basis for imposing or increasing punishment.”

Id. at 109-110. The jury’s function within that framework was to prevent the government from “imprison[ing], dispatch[ing] or exil[ing]”—that is, punishing—

17

anyone unless “the truth of every accusation” was

“confirmed” by a jury of his peers, “superior to all

suspicion.” Duncan, 391 U.S. at 151-152 (quoting 4

William Blackstone, Commentaries on the Laws of

England 349-350 (Cooley ed. 1899)).

In considering the implications of this history, this

Court insisted in Apprendi that, although trial practices may change over time, they “must at least adhere

to the basic principles undergirding the requirements

of trying to a jury all facts necessary to constitute a

statutory offense, and proving those facts beyond a

reasonable doubt.” 530 U.S. at 483-484. Sentencing

based on acquitted conduct violates these principles by

breaking the link between the jury’s verdict and the

punishment inflicted.

The jury’s guilty verdict supplies the authorization

for punishment. It is turns the Sixth Amendment upside down to permit a sentencing judge to rely on

acquitted conduct for punishment.

3. Watts and McMillan do not control

Petitioner implies that the decision below conflicts

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

McMillan v. Pennsylvania, 477 U.S. 79 (1986). Pet. 6.

That is incorrect.

In a per curiam summary reversal, Watts held only

that consideration of acquitted conduct at sentencing

does not violate the Double Jeopardy Clause. See 519

U.S. at 154-155. The Court was not presented with, nor

did it explore, the due process and Sixth Amendment

implications of sentencing based on acquitted conduct.

Booker confirms this, cautioning that Watts “presented

a very narrow question regarding * * * the Double

Jeopardy Clause.” United States v. Booker, 543 U.S.

220, 240 n.4 (2005). Because Watts did not “have the

benefit of full briefing or oral argument,” “[i]t is

18

unsurprising that [the Court] failed to consider fully”

the broader implications of considering acquitted

conduct at sentencing. Ibid.

McMillan did address the Due Process Clause, but

only with respect to uncharged conduct, not acquitted

conduct. As the Michigan Supreme Court correctly

observed, acquitted conduct is meaningfully, constitutionally, different from uncharged conduct: As to uncharged conduct, the jury makes no conclusions at all;

as to acquitted conduct, the jury has concluded that the

defendant should not be punished based upon it. Beck,

939 N.W.2d at 222.

Moreover, core elements of McMillan have been

overruled by subsequent cases. “Finding no basis in the

original understanding of the Fifth and Sixth Amendments for McMillan,” the Court has “expressly overruled [that] decision.” United States v. Haymond, 139

S. Ct. 2369, 2378 (2019) (plurality opinion). In Beck,

the Michigan Supreme Court correctly concluded that

Watts and McMillan present no bar to relief in cases

like this one.

CONCLUSION

The petition should be denied.

Respectfully submitted.

DOUGLAS W. BAKER

MICHAEL B. KIMBERLY

Michigan State Appellate Counsel of Record

Defender Office

PAUL W. HUGHES

3031 W. Grand Blvd.

McDermott Will & Emery LLP

Detroit, MI 48202

500 North Capitol Street NW

(313) 256-9833

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Respondent