Petition for Writ of Certiorari — Michigan, Petitioner v. Eric Lamontee Beck
Supreme Court briefOct 23, 2019
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No. _________
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In The
Supreme Court of the United States
-----------------------------------------------------------------PEOPLE OF THE STATE OF MICHIGAN,
Petitioner,
v.
ERIC LAMONTEE BECK,
Respondent.
-----------------------------------------------------------------On Petition For Writ Of Certiorari
To The Michigan Supreme Court
-----------------------------------------------------------------PETITION FOR WRIT OF CERTIORARI
-----------------------------------------------------------------JOHN A. MCCOLGAN, JR.
Saginaw County Prosecuting Attorney
HEIDI M. WILLIAMS
Chief Appellate Attorney
Counsel of Record
CARMEN R. FILLMORE
MELISSA J. HOOVER
Assistant Prosecuting Attorneys
SAGINAW COUNTY PROSECUTOR’S OFFICE
111 S. Michigan Avenue
Saginaw, Michigan 48602
(989) 790-5558
hwilliams@saginawcounty.com
October 23, 2019
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
Every regional federal circuit court has addressed
the constitutionality of considering conduct underlying
an acquitted charge at sentencing, and each one has
held that a sentencing court may consider such conduct without offending a defendant’s constitutional
rights. This Court has held 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 proved by a preponderance of the evidence,” and that “application of the preponderance standard at sentencing generally satisfies
due process.” Contrary to this holding, the Michigan
Supreme Court here held that this Court has not decided that consideration of acquitted conduct at sentencing is consistent with due process, that it was thus
writing on a “clean slate,” and that due process does
“bar sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted” and considering that
conduct at sentencing for the offense of conviction.
The question presented is: Whether, when imposing a sentence within the statutory range for the offense of conviction, due process permits a sentencing
court to consider conduct underlying an acquitted
charge, so long as that conduct has been proved by a
preponderance of the evidence.
ii
RELATED CASES
People v. Beck, 13-039031-FC, Saginaw Circuit Court.
Judgment entered May 1, 2014.
People v. Beck, No. 321806, Michigan Court of Appeals.
Judgment entered November 17, 2015.
People v. Beck, No. 152934, Michigan Supreme Court.
Judgment entered July 29, 2019.
iii
TABLE OF CONTENTS
Page
PETITION FOR A WRIT OF CERTIORARI .........
1
OPINIONS BELOW .............................................
1
JURISDICTION ...................................................
1
RELEVANT CONSTITUTIONAL PROVISIONS ....
2
STATEMENT OF THE CASE ...............................
2
REASONS FOR GRANTING THE PETITION .....
9
I.
The Michigan Supreme Court’s Opinion
Contradicts that of Every Federal Circuit
Court and the Majority of State Courts
That Have Addressed the Constitutionality of Considering Conduct Underlying an
Acquitted Charge at Sentencing ...............
9
II.
The Michigan Supreme Court Dramatically Expanded the Principle of the Presumption of Innocence Beyond What This
Court’s Precedents Can Bear .................... 13
III.
The Michigan Supreme Court Erroneously
Rejected the Due-Process Holdings From
McMillan and Watts .................................. 30
CONCLUSION..................................................... 35
iv
TABLE OF CONTENTS—Continued
Page
INDEX TO APPENDICES
APPENDIX 1-79 People v. Beck, No. 152934,
Michigan Supreme Court.
Judgment entered July 29,
2019 ....................................... App. 1
APPENDIX 80-97 People v. Beck, No. 321806,
Michigan Court of Appeals.
Judgment entered November
17, 2015 ................................ App. 80
v
TABLE OF AUTHORITIES
Page
UNITED STATES SUPREME COURT OPINIONS
Alleyne v. United States,
570 U.S. 99 (2013) ........................................... passim
Apprendi v. New Jersey,
530 U.S. 466 (2000) ......................................... passim
Blakley v. Washington,
542 U.S. 296 (2004) ........................... 8, 20, 21, 22, 23
Coffin v. United States,
156 U.S. 432 (1895) .................................................14
Dillon v. United States,
560 U.S. 817 (2010) .................................................24
Dowling v. United States,
493 U.S. 342 (1990) ..................................... 18, 31, 32
Estelle v. Williams,
425 U.S. 501 (1976) .................................................13
Harris v. United States,
536 U.S. 545 (2002) .................................................34
In re Winship,
397 U.S. 358 (1970) ..................................... 13, 15, 25
Jones v. United States,
135 S. Ct. 8 (2014) ...................................................30
Jones v. United States,
526 U.S. 227 (1999) ........................................... 19, 20
McMillan v. Pennsylvania,
477 U.S. 79 (1986) ........................................... passim
Meachum v. Fano,
427 U.S. 215 (1976) .................................................16
vi
TABLE OF AUTHORITIES—Continued
Page
Mullaney v. Wilbur,
421 U.S. 684 (1975) .................................................19
Nichols v. United States,
511 U.S. 738 (1994) .................................................18
Patterson v. New York,
432 U.S. 197 (1977) ........................................... 15, 17
Pointer v. Texas,
380 U.S. 400 (1965) .................................................13
Ring v. Arizona,
536 U.S. 584 (2002) .................................................20
United States v. Booker,
543 U.S. 220 (2005) ..................................... 22, 32, 33
United States v. Haymond,
139 S. Ct. 2369 (2019) .............................................34
United States v. One Assortment
of 89 Firearms,
465 U.S. 354 (1984) ........................................... 18, 31
United States v. Watts,
519 U.S. 148 (1997) ......................................... passim
Williams v. New York,
337 U.S. 241 (1949) ......................................... passim
Witte v. United States,
515 U.S. 389 (1995) ..................................... 16, 17, 22
vii
TABLE OF AUTHORITIES—Continued
Page
FEDERAL CIRCUIT COURT OPINIONS
United States v. Ashqar,
582 F.3d 819 (7th Cir. 2009) ....................................30
United States v. Ashworth,
139 F. App’x 525 (4th Cir. 2005) ........................ 10, 11
United States v. Benkahla,
530 F.3d 300 (4th Cir. 2008) ....................................30
United States v. Boney,
977 F.2d 624 (D.C. Cir. 1992) ..................................11
United States v. Crosby,
397 F.3d 103 (2d Cir. 2005) .......................................7
United States v. Donelson,
695 F.2d 583 (D.C. Cir. 1982) ..................................18
United States v. Dorcely,
454 F.3d 366 (D.C. Cir. 2006) ................ 10, 11, 12, 33
United States v. Duncan,
400 F.3d 1297 (11th Cir. 2005) .......................... 10, 11
United States v. Farias,
469 F.3d 393 (5th Cir. 2006) .............................. 10, 11
United States v. Gobbi,
471 F.3d 302 (1st Cir. 2006) ....................................10
United States v. Hayward,
177 F. App’x 214 (3d Cir. 2006) ......................... 10, 11
United States v. Hernandez,
633 F.3d 370 (5th Cir. 2011) ....................................30
United States v. High Elk,
442 F.3d 622 (8th Cir. 2006) .............................. 10, 11
viii
TABLE OF AUTHORITIES—Continued
Page
United States v. Horne,
474 F.3d 1004 (7th Cir. 2007) ..................................12
United States v. Magallanez,
408 F.3d 672 (10th Cir. 2005) ............................ 10, 11
United States v. Mercado,
474 F.3d 654 (9th Cir. 2007) .............................. 10, 11
United States v. Nagell,
911 F.3d 23 (1st Cir. 2018) ......................................10
United States v. Price,
418 F.3d 771 (7th Cir. 2005) .............................. 10, 11
United States v. Putra,
78 F.3d 1386 (9th Cir. 1996) ......................................6
United States v. Redcorn,
528 F.3d 727 (10th Cir. 2008) ..................................30
United States v. Settles,
530 F.3d 920 (D.C. Cir. 2008) ..................................29
United States v. Swartz,
758 F. App’x 108 (2d Cir. 2018) ......................... 11, 33
United States v. Treadwell,
593 F.3d 990 (9th Cir. 2010) ....................................30
United States v. Vaughn,
430 F.3d 518 (2d Cir. 2005) ............................... 10, 11
United States v. White,
551 F.3d 381 (6th Cir. 2008) ........................ 10, 11, 33
ix
TABLE OF AUTHORITIES—Continued
Page
STATE COURT OPINIONS
Bishop v. State,
486 S.E.2d 887 (Ga. 1997) .......................................12
Nusspickel v. State,
966 So.2d 441 (Fla. Dist. Ct. App. 2007) .................12
People v. Harper,
739 N.W.2d 523 (Mich. 2007) ..................................28
People v. Lockridge,
870 N.W.2d 502 (Mich. 2015) .......................... 5, 7, 29
People v. Milbourn,
461 N.W.2d 1 (Mich. 1990) ........................................5
People v. Pagan,
165 P.3d 724 (Colo. App. 2006) ................................12
People v. Steanhouse,
902 N.W.2d 327 (Mich. 2017) ................................ 5, 7
People v. Tanner,
199 N.W.2d 202 (Mich. 1972) ..................................28
People v. Towne,
186 P.3d 10 (Cal. 2008) ...........................................12
State v. Ballard,
No. 08 CO 13, 2009 WL 3305747
(Ohio Ct. App. Sept. 30, 2009) .................................12
State v. Clark,
197 S.W.3d 598 (Mo. 2006) ......................................12
State v. Cote,
530 A.2d 775 (N.H. 1987) ........................................12
x
TABLE OF AUTHORITIES—Continued
Page
State v. Hampton,
195 So.3d 548 (La. Ct. App. 2016) ...........................12
State v. Marley,
364 S.E.2d 133 (N.C. 1988) .....................................12
State v. Thames,
No. 2008AP1127-CR, 2008 WL 5146778
(Wis. App. Dec. 9, 2008) ...........................................12
State v. Witmer,
10 A.3d 728 (Me. 2011)............................................12
CONSTITUTION AND STATUTES
U.S. CONST. amend. VI ........................................ passim
U.S. CONST. amend. XIV, § 1 ......................... 2, 7, 10, 15
MICH. COMP. LAWS § 750.224f ............................. 4, 5, 28
MICH. COMP. LAWS § 750.226 ........................................4
MICH. COMP. LAWS § 750.227b ......................................4
MICH. COMP. LAWS § 750.316 ........................................4
MICH. COMP. LAWS § 769.12(1)(b) ........................... 5, 28
MICH. COMP. LAWS § 769.34(2)(b) ...............................28
MICH. COMP. LAWS § 769.9(2) ......................................28
28 U.S.C. § 1257(a) ........................................................1
OTHER AUTHORITIES
1 J. Bishop, CRIMINAL PROCEDURE 50 (2d ed. 1872) .....24
1
PETITION FOR A WRIT OF CERTIORARI
The People of the State of Michigan respectfully
petition for a writ of certiorari to review the judgment
of the Michigan Supreme Court in this matter.
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OPINIONS BELOW
The decision of the Michigan Supreme Court,
which is not yet reported,1 is reprinted in the Appendix
(App.) at 1-79. The decision of the Michigan Court of
Appeals, which is unreported,2 is reprinted at App. 8097.
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JURISDICTION
The Michigan Supreme Court issued its opinion
on July 29, 2019. This Court has jurisdiction under 28
U.S.C. § 1257(a).
------------------------------------------------------------------
1
People v. Beck, No. 152934, 2019 WL 3422585 (Mich. July
29, 2019).
2
People v. Beck, No. 321806, 2015 WL 7283228 (Mich. Ct.
App. Nov. 17, 2015).
2
RELEVANT CONSTITUTIONAL PROVISIONS
The Sixth Amendment of the United States Constitution provides:
In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and
district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation; to
be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor, and to have the Assistance
of Counsel for his defence.
The Fourteenth Amendment of the United States
Constitution, in part, provides:
No State shall make or enforce any law which
shall abridge the privileges or immunities of
citizens of the United States; nor shall any
State deprive any person of life, liberty, or
property, without due process of law; nor deny
to any person within its jurisdiction the equal
protection of the laws.
------------------------------------------------------------------
STATEMENT OF THE CASE
On July 29, 2019, a divided 4-3 Michigan Supreme
Court held that a sentencing judge violates the Due
Process Clause of the Fourteenth Amendment of the
United States Constitution by considering conduct underlying an acquitted charge at sentencing, even when
3
that conduct has been proved by a preponderance of
the evidence and the imposed sentence falls within the
statutorily prescribed range for the offense of conviction. The majority’s error was apparent from the start
when it framed the issue as “whether a sentencing
judge can sentence a defendant for a crime of which the
defendant was acquitted.” App. 1 (emphasis added).3 In
so ruling, the Michigan Supreme Court announced
that it was not bound by this Court’s decisions in
McMillan v. Pennsylvania, 477 U.S. 79 (1986), or
United States v. Watts, 519 U.S. 148 (1997), to hold otherwise, despite acknowledging that its position contradicted that of every federal circuit court and the
majority of state courts that have addressed the issue.
Another petitioner seeking a writ of certiorari has already recognized that the Michigan Supreme Court’s
opinion “creates a clear split between a state court of
last resort and the federal courts of appeals, because
federal courts have unanimously applied Watts to foreclose both due process and Sixth Amendment challenges.”4 In light of the Michigan Supreme Court’s
disregard of this Court’s precedents and the holdings
3
In United States v. Watts, 519 U.S. 148 (1997), this Court
rejected a nearly identical framing error adopted by the United
States Court of Appeals for the Ninth Circuit: “The issue on
appeal is whether a judge can sentence a defendant for a crime
of which the jury found her not guilty.” United States v. Putra,
78 F.3d 1386, 1387 (9th Cir. 1996), overruled by Watts, 519 U.S.
148.
4
Supplemental Brief in Support of Petition for Writ of Certiorari at 4, Asaro v. United States, 767 F. App’x 173 (2d Cir. 2019)
(No. 19-107) [hereinafter Asaro].
4
of other federal circuit and state courts, this petition
for a writ of certiorari follows.
On June 11, 2013, Hoshea Pruitt was shot to death
during a verbal altercation over a woman named Rajeana Drain. Mary Loyd-Deal, a witness who died before trial, saw the shooting and identified respondent
as the shooter during her preliminary-examination
testimony. A second witness, Jamira Calais, was present at the shooting, but could not confirm respondent’s identity as the shooter. A third witness, Aaron
Fuse, testified that respondent called him a few days
after Pruitt’s death and confessed that he had done
“something stupid” and shot someone while arguing
over a woman.
Respondent was charged with open murder, carrying a dangerous weapon with unlawful intent, being a
felon in possession of a firearm (felon-in-possession),
and three counts of carrying a firearm during the commission of a felony (felony-firearm).5 A jury convicted
respondent of felon-in-possession and felony-firearm,
but acquitted him of murder, carrying a firearm with
unlawful intent, and the two additional counts of felony-firearm attendant to the acquitted charges.
Under the Michigan Sentencing Guidelines, respondent’s minimum sentencing range for his felon-inpossession conviction was 22 to 76 months’ imprisonment, but in Michigan, the sentencing guidelines are
advisory only. People v. Lockridge, 870 N.W.2d 502,
5
MICH. COMP. LAWS §§ 750.316, 226, 224f, 227b.
5
520-21 (Mich. 2015) (relying on Alleyne v. United
States, 570 U.S. 99 (2013), to hold that Michigan’s mandatory sentencing scheme violated the Sixth Amendment and rendering the guidelines advisory in all
applications).6 The trial court sentenced respondent
to 240 to 400 months’ imprisonment for his felon-inpossession conviction, which fell within the statutorily
prescribed sentencing range applicable to the offense.
Under Michigan law, felon-in-possession is typically
punishable by up to five years’ imprisonment. MICH.
COMP. LAWS § 750.224f(5). However, because respondent was a fourth-offense habitual felony offender,
MICH. COMP. LAWS § 769.12(1)(b) raised his maximum
potential sentence to “life or . . . a lesser term” of
years.
The sentencing judge explained that he imposed
the sentence he did, in part, because he found by a preponderance of the evidence that respondent committed
6
Although the guidelines remain a highly relevant consideration in the exercise of sentencing discretion and a trial court
must consult the guidelines and take them into account at sentencing, a “sentencing court may exercise its discretion to depart
from [the] guidelines range without articulating substantial and
compelling reasons for doing so.” Lockridge, 870 N.W.2d at 52021. When a sentencing judge imposes a minimum sentence
above the recommended guidelines’ range, Michigan appellate
courts review that sentence for reasonableness under the “principle of proportionality,” which does not measure proportionality by
reference to any deviation from the guidelines, but rather requires “ ‘sentences imposed by the trial court to be proportionate
to the seriousness of the circumstances surrounding the offense
and the offender.’ ” People v. Steanhouse, 902 N.W.2d 327, 337
(Mich. 2017) (quoting People v. Milbourn, 461 N.W.2d 1, 3 (Mich.
1990)).
6
the killing underlying the murder charge of which the
jury had acquitted him. The judge explained:
This gentleman has a prior murder conviction on his record that he pled guilty to for
which he served 13 years in prison. That was
in 1991. He was discharged from parole in
2007. In 2010, only three years later, he pled
no contest to a firearms, possession by a felon
for which he received 252 days in jail. And
then this charge, offense date was June 11,
2013 where, again, he is in possession of a firearm at a murder scene.
The testimony in this case by one of the
witnesses who could not identify him was that
a man approached the victim with a gun. She
saw a muzzle flash and the victim fell to the
ground and the perpetrator ran off.
The other witness, who was not alive at
the time of the trial, and was barely alive at
the time of the prelim, identified this gentleman as the person who approached the victim
with the gun. Gave a positive identification.
Indicated she saw the gun. Then her story wavered as far as whether she saw the shooting
or whether she was in her kitchen at the time
of the shooting. I think the inconsistency, and
where she was at the time of the shooting, as
well as her not being in court, affected the
jury’s verdict. They could not find, beyond a
reasonable doubt, that the defendant committed the homicide. But the Court certainly finds
7
that there is a preponderance of the evidence
that he did.
App. 4-5 (emphasis added in Beck).
Respondent challenged his sentence in the Michigan Court of Appeals, which remanded the case for
further sentencing proceedings.7 App. 97. Respondent
then sought leave to appeal in the Michigan Supreme
Court, which held his application in abeyance for People v. Steanhouse, 902 N.W.2d 327 (Mich. 2017). After
issuing its opinion in Steanhouse, the Michigan Supreme Court ordered oral argument on respondent’s
application.
On July 29, 2019, a divided 4-3 Michigan Supreme
Court held that the sentencing judge violated respondent’s due-process rights under the Fourteenth Amendment by considering conduct underlying an acquitted
charge at sentencing, even when that conduct was established by a preponderance of the evidence and the
imposed sentence fell within the statutorily prescribed
range for the offense of conviction.8 The majority
concluded that McMillan, 477 U.S. 79, was not dispositive because it involved uncharged rather than acquitted conduct. The court also opined that McMillan’s
7
The court remanded the case to the trial court for a determination of whether that court would have imposed a materially
different sentence had its discretion not been constrained by
the sentencing guidelines. See Lockridge, 870 N.W.2d at 523-24
(adopting the procedure from United States v. Crosby, 397 F.3d
103 (2d Cir. 2005)).
8
The Michigan Supreme Court expressly premised its holding on federal, and not state, law. App. 8.
8
due-process analysis was called into question after
Alleyne v. United States, 570 U.S. 99 (2013). Although
Alleyne addressed a Sixth Amendment claim, the majority concluded that the opinion rendered McMillan’s
Sixth Amendment and due-process holdings unusable
because their interwoven nature made it “impossible
to conclude that its analysis of the former has been
repudiated but its analysis of the latter remains entirely viable.” App. 19-20.
The majority also concluded that Watts, 519 U.S.
148, was “unhelpful” to resolve the due-process question because the holding in Watts was limited by
United States v. Booker, 543 U.S. 220, 240 n. 4 (2005),
to claims involving the Double Jeopardy Clause. App.
21. The majority thus announced it could address the
due-process question “on a clean slate.” App. 22.
The Michigan Supreme Court held that the consideration of conduct underlying an acquitted charge
at sentencing violates due process, grounding that conclusion “in the guarantees of fundamental fairness and
the presumption of innocence.” App. 22. The majority
reasoned that, although a judge may consider uncharged conduct at sentencing, once a jury acquits an
accused of a charged offense, the conduct underlying
that offense becomes “protected by the presumption of
innocence [and] may not be evaluated using the preponderance-of-the-evidence standard without violating due process.” App. 24. The Michigan Supreme
Court acknowledged that its holding contradicted
every federal circuit court and the majority of state
courts that have addressed the question, but it was
9
persuaded by the “volume and fervor of judges and
commentators who have criticized the practice of using
acquitted conduct as inconsistent with fundamental
fairness and common sense.” App. 24.
In dissent, Justice CLEMENT, joined by Justices
MARKMAN and ZAHRA, opined that the majority endorsed an overly broad reading of the presumption of
innocence and improperly rejected McMillan and
Watts. App. 64-65, 77-78. The dissent reasoned that the
presumption of innocence requires proof beyond a reasonable doubt to establish each element of a charged
offense, but once a valid conviction is obtained, the presumption does not prevent a trial court from considering conduct underlying an acquitted charge at
sentencing. App. 64-65.
------------------------------------------------------------------
REASONS FOR GRANTING THE PETITION
I.
The Michigan Supreme Court’s Opinion
Contradicts that of Every Federal Circuit
Court and the Majority of State Courts
That Have Addressed the Constitutionality
of Considering Conduct Underlying an Acquitted Charge at Sentencing.
Every regional federal circuit court has addressed
the constitutionality of considering conduct underlying
an acquitted charge at sentencing, and each one
has held that a sentencing court may consider such
conduct without offending a defendant’s constitutional rights, so long as the conduct is proved by a
10
preponderance of the evidence and the imposed sentence falls within the statutory range for the offense of
conviction. See, e.g., United States v. Gobbi, 471 F.3d
302, 314 (1st Cir. 2006), abrogated in part on other
grounds as stated in United States v. Nagell, 911 F.3d
23, 31 n. 8 (1st Cir. 2018); United States v. Vaughn, 430
F.3d 518, 525-27 (2d Cir. 2005); United States v. Hayward, 177 F. App’x 214, 215 (3d Cir. 2006); United
States v. Ashworth, 139 F. App’x 525, 527 (4th Cir.
2005); United States v. Farias, 469 F.3d 393, 399-400
(5th Cir. 2006); United States v. White, 551 F.3d 381,
383-84 (6th Cir. 2008); United States v. Price, 418 F.3d
771, 787-88 (7th Cir. 2005); United States v. High Elk,
442 F.3d 622, 626 (8th Cir. 2006); United States v. Mercado, 474 F.3d 654, 655-56 (9th Cir. 2007); United
States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir.
2005); United States v. Duncan, 400 F.3d 1297, 1304-05
(11th Cir. 2005); United States v. Dorcely, 454 F.3d 366,
371 (D.C. Cir. 2006). In affirming the constitutionality
of considering conduct underlying an acquitted
charge at sentencing, nearly all of the federal circuits
have held not only that Watts, 519 U.S. 148, remains
good law, but that Watts applies to claims involving the
Sixth Amendment right to a trial by jury and the Due
Process Clause9 of the Fifth Amendment.10 Contrary to
9
The fact that this case involves a due-process claim under
the Fourteenth rather than the Fifth Amendment is of no moment
because the due-process guarantees of the Fifth and Fourteenth
Amendments “command[ ] the same answer.” Apprendi v. New
Jersey, 530 U.S. 466, 476 (2000).
10
See, e.g., Gobbi, 471 F.3d at 314 (holding that Watts
remains good law and allows a sentencing judge to consider
11
the Michigan Supreme Court’s holding, several federal
circuit courts have specifically held that Watts controls
when a defendant claims a violation of due process and
allows a judge to consider acquitted conduct at sentencing so long as the conduct is proved by a preponderance of the evidence. See, e.g., United States v.
Swartz, 758 F. App’x 108, 111-12 (2d Cir. 2018) (rejecting a defendant’s due-process claim); United States v.
Boney, 977 F.2d 624, 635-36 (D.C. Cir. 1992) (same);
Dorcely, 454 F.3d at 372 (explaining that Watts governs
not only double-jeopardy claims but also “plainly encompasses the due process clause”). Further at odds
with the Michigan Supreme Court’s opinion, several
federal circuit courts have cited McMillan to support
the rule that a judge may consider conduct underlying
an acquitted charge at sentencing when the conduct is
acquitted conduct, without distinguishing between the Fifth and
Sixth Amendment interests at issue); Vaughn, 430 F.3d at 52527 (same); Hayward, 177 F. App’x at 215 (same); Ashworth, 139
F. App’x at 527 (same); Farias, 469 F.3d at 399-400 (same);
Magallanez, 408 F.3d at 684-85 (same). But see White, 551 F.3d
at 383-84 (applying Watts to a Sixth Amendment claim); Price,
418 F.3d at 787-88 (same); Mercado, 474 F.3d at 655-56 (same).
See also High Elk, 442 F.3d at 626 (not mentioning Watts, but
holding that a sentencing judge may consider acquitted conduct
at sentencing so long as the conduct is established by a preponderance of the evidence, without distinguishing between the Fifth
and Sixth Amendment interests at issue). Only the Eleventh Circuit has concluded that Watts has no bearing on the Sixth Amendment question. See White, 551 F.3d at 392 n. 2 (MERRITT, J.,
dissenting); Duncan, 400 F.3d at 1304-05 (acknowledging that
Watts did not directly involve a Sixth Amendment claim, but
nonetheless holding that a judge may consider acquitted conduct
at sentencing, without distinguishing between the Fifth and
Sixth Amendment interests at issue).
12
established by a preponderance of the evidence. See,
e.g., United States v. Horne, 474 F.3d 1004, 1006 (7th
Cir. 2007) (citing McMillan and Watts, but not identifying the constitutional right at issue); Dorcely, 454
F.3d at 371 (citing McMillan and Watts, and expressly
rejecting claims under both the Sixth Amendment and
the Due Process Clause of the Fifth Amendment).
State courts are more divided over the propriety
of considering conduct underlying an acquitted charge
at sentencing. Like the Michigan Supreme Court, a
few state courts have rejected the practice on the basis of due process and fundamental fairness. See State
v. Marley, 364 S.E.2d 133, 138-39 (N.C. 1988); State v.
Cote, 530 A.2d 775, 783-85 (N.H. 1987); Bishop v. State,
486 S.E.2d 887, 897 (Ga. 1997). But more recently,
state courts have affirmed the use of acquitted conduct
at sentencing, uniformly concluding that Watts applies
to resolve the question. See, e.g., State v. Clark, 197
S.W.3d 598, 600-02 (Mo. 2006); People v. Towne, 186
P.3d 10, 24-25 (Cal. 2008); State v. Witmer, 10 A.3d 728,
733-34 (Me. 2011); State v. Hampton, 195 So.3d 548,
561 (La. Ct. App. 2016); Nusspickel v. State, 966 So.2d
441, 445-47 (Fla. Dist. Ct. App. 2007); People v. Pagan,
165 P.3d 724, 730-31 (Colo. App. 2006); State v. Ballard, No. 08 CO 13, 2009 WL 3305747 (Ohio Ct. App.
Sept. 30, 2009); State v. Thames, No. 2008AP1127-CR,
2008 WL 5146778 (Wis. App. Dec. 9, 2008).
Another petitioner seeking a writ of certiorari has
already recognized that the Michigan Supreme Court’s
opinion here “creates a clear split between a state
court of last resort and the federal courts of appeals,
13
because federal courts have unanimously applied Watts
to foreclose both due process and Sixth Amendment
challenges.”11 “By creating a clear split between a state
court of last resort and the federal courts of appeals,
the Michigan Supreme Court’s decision in Beck heightens the need for this Court’s review of the question
presented.”12 The Michigan Supreme Court’s opinion
conflicts with the decisions reached by every federal
circuit court and the majority of state courts that have
addressed the constitutionality of considering conduct
underlying an acquitted charge at sentencing. This
Court should intervene to resolve the split and to correct the Michigan Supreme Court’s unorthodox interpretation and application of this Court’s precedents.
II.
The Michigan Supreme Court Dramatically
Expanded the Principle of the Presumption
of Innocence Beyond What This Court’s
Precedents Can Bear.
The right to a fair trial is a fundamental liberty
secured by the Fourteenth Amendment. Pointer v.
Texas, 380 U.S. 400, 403 (1965). “The presumption of
innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S.
501, 503 (1976). “[T]he Due Process Clause protects the
accused against conviction except upon proof beyond a
reasonable doubt of every fact necessary to constitute
the crime with which he is charged.” In re Winship, 397
11
12
Asaro, supra note 4, at 4.
Id. at 6.
14
U.S. 358, 364 (1970). Indeed, the requirement of proof
beyond a reasonable doubt to support a conviction is
an “ ‘axiomatic and elementary’ principle whose ‘enforcement lies at the foundation of the administration
of our criminal law.’ ” Id. at 363 (quoting Coffin v.
United States, 156 U.S. 432, 453 (1895)). Contrary to
its widely accepted role, the Michigan Supreme Court
applied the presumption of innocence to facts presented at sentencing for a conviction already validly
obtained, making the striking assertion in the process
that the presumption carries equal, if not greater,
weight at sentencing as compared to trial.
In Williams v. New York, 337 U.S. 241, 252 (1949),
this Court held that the Due Process Clause of the
Fourteenth Amendment does not prevent a sentencing
judge from considering out-of-court information at sentencing, even when that information would have been
inadmissible at trial. Tribunals passing on the guilt of
a defendant have long been “hedged by strict evidentiary procedural limitations,” but once guilt is established, this nation’s tradition has always allowed
sentencing judges to exercise “wide discretion in the
sources and types of evidence used to assist . . . in determining the kind and extent of punishment to be imposed within limits fixed by law.” Id. at 246. Both our
historical jurisprudence and modern penological goals
are served when a judge possesses “the fullest information possible concerning the defendant’s life and
characteristics” at sentencing. Id. at 247.
The Williams Court did not address whether due
process imposes a certain standard of proof at sentencing, but emphasized that “[t]he due-process clause
15
should not be treated as a device for freezing the evidential procedure of sentencing in the mold of trial
procedure.” Id. at 251. Although sentencing procedure
is not immune from scrutiny under the Due Process
Clause, the Williams Court concluded that the possibility of abuse arising from the exercise of broad discretionary sentencing power did not warrant the
creation of a “rigid constitutional barrier.” Id. at 251,
252 n. 18.
In the decades after Williams, challenges to sentencing procedure emerged under the Double Jeopardy
Clause of the Fifth Amendment, the Sixth Amendment’s guarantee of a right to a trial by jury, and the
Due Process Clauses of the Fifth and Fourteenth
Amendments. In Winship, 397 U.S. at 364, this Court
held that due process requires proof beyond a reasonable doubt to establish every element of a charged
crime. But in Patterson v. New York, 432 U.S. 197, 210
(1977), this Court stressed that a legislature’s definition
of the elements of the offense is usually dispositive:
“[T]he Due Process Clause requires the prosecution to
prove beyond a reasonable doubt all of the elements included in the definition of the offense of which the defendant is charged.” (Emphasis added.) The state need
not prove beyond a reasonable doubt every fact “the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance
affecting the degree of culpability or the severity of the
punishment.” Id. at 207.
In McMillan v. Pennsylvania, 477 U.S. 79, 84-85
(1986), this Court held that sentencing factors are not
16
elements of an offense that must be proved beyond a
reasonable doubt to satisfy due process. At issue in
McMillan was a Pennsylvania statute that imposed a
mandatory five-year minimum sentence for certain
enumerated felonies if, at sentencing, the judge found
by a preponderance of the evidence that the defendant
visibly possessed a firearm during commission of the
offense. Id. at 81. Affirming the constitutionality of
the statute, this Court explained that the law gave “no
impression of having been tailored to permit the visible possession finding to be a tail which wags the dog
of the substantive offense.” Id. at 88. Although acknowledging that due process could restrain a state’s
unbridled power to redefine crimes to the detriment
of criminal defendants, the McMillan Court did not
attempt to identify such constitutional limits, beyond
explaining that a state may not disregard the presumption of innocence. Id. at 86-87.
The McMillan Court had little difficulty concluding that “the preponderance standard satisfies due
process” when the relevant fact supports a sentencing
factor rather than an element of the offense. Id. at 91.
After all, “[s]entencing courts have traditionally heard
evidence and found facts without any prescribed burden of proof at all.” Id. at 91 (citing Williams, 337 U.S.
241).13 Having concluded that visible possession was
a sentencing factor rather than an element of the
13
See also Meachum v. Fano, 427 U.S. 215, 222 (1976) (explaining that, once a valid conviction is obtained, a “criminal defendant has been constitutionally deprived of his liberty to the
extent that the State may confine him”).
17
offense, the McMillan Court rejected in short order
the defendants’ additional claim that the Pennsylvania statute violated their Sixth Amendment right to
a jury trial: “[W]e need only note that there is no
Sixth Amendment right to jury sentencing, even
where the sentence turns on specific findings of fact.”
Id. at 93.
In Witte v. United States, 515 U.S. 389 (1995), this
Court rejected a double-jeopardy challenge to a judge’s
consideration of relevant uncharged conduct at sentencing. “[B]y authorizing the consideration of offender-specific information at sentencing without the
procedural protections attendant at a criminal trial,
our cases necessarily imply that such consideration
does not result in ‘punishment’ for [the uncharged]
conduct.” Id. at 400-01 (citing McMillan, 477 U.S. 79,
and Patterson, 432 U.S. 197). Accordingly, “where the
legislature has authorized such a particular punishment range for a given crime, the resulting sentence
within that range constitutes punishment only for the
offense of conviction for purposes of the double jeopardy inquiry.” Id. at 403-04.
A natural successor to Witte, in United States v.
Watts, 519 U.S. 148 (1997), this Court considered in two
cases the constitutionality of using acquitted conduct
or pending charges to enhance a defendant’s sentence.
Relying on Williams, this Court reaffirmed its historical jurisprudence calling for the fullest consideration
of available information at sentencing, explaining that
under the pre-Guidelines federal sentencing regime it
was “ ‘well established that a sentencing judge may
18
take into account facts introduced at trial relating to
other charges, even ones of which the defendant has
been acquitted.’ ” Id. at 152 (quoting United States v.
Donelson, 695 F.2d 583, 590 (D.C. Cir. 1982) (SCALIA,
J.)) (emphasis added). The enactment of the Federal
Sentencing Guidelines did not alter this aspect of a
sentencing court’s discretion. Id. The Watts Court thus
held that use of conduct underlying an acquitted
charge at sentencing does not violate the Double Jeopardy Clause because “sentencing enhancements do not
punish a defendant for crimes of which he was not convicted, but rather increase his sentence because of the
manner in which he committed the crime of conviction.” Id. at 154.
To affirm the defendants’ sentences, the Watts
Court also rejected the lower courts’ rationale that an
acquittal means the jury necessarily rejected the facts
underlying an acquitted charge. “ ‘[An] acquittal on
criminal charges does not prove that the defendant is
innocent; it merely proves the existence of a reasonable
doubt as to his guilt.’ ” Id. at 155 (quoting United States
v. One Assortment of 89 Firearms, 465 U.S. 354, 361
(1984)). “ ‘[A]n acquittal in a criminal case does not preclude the Government from relitigating an issue when
it is presented in a subsequent action governed by a
lower standard of proof.’ ” Id. at 156 (quoting Dowling
v. United States, 493 U.S. 342, 349 (1990)). Acknowledging its two previous holdings that the preponderance standard at sentencing satisfies due process,14 the
14
McMillan, 477 U.S. at 91; Nichols v. United States, 511
U.S. 738, 748 (1994).
19
Watts Court “h[e]ld 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 proved by a preponderance of
the evidence.” Id. at 157.
This Court later observed that McMillan was notable “not only for acknowledging the question of due
process requirements for factfinding that raises a sentencing range, but also for disposing of a claim that the
Pennsylvania law violated the Sixth Amendment right
to a jury trial as well.” Jones v. United States, 526 U.S.
227, 242 (1999). But lingering constitutional concerns
remained:
McMillan . . . recognizes a question under
both the Due Process Clause of the Fourteenth Amendment and the jury guarantee of
the Sixth: when a jury determination has not
been waived, may judicial factfinding by a preponderance support the application of a provision that increases the potential severity of
the penalty for a variant of a given crime?
The seriousness of the due process issue is evident from Mullaney’s[15] insistence that a
State cannot manipulate its way out of Winship, and from Patterson’s recognition of a
limit on state authority to reallocate traditional burdens of proof; the substantiality of
the jury claim is evident from the practical
implications of assuming Sixth Amendment
indifference to treating a fact that sets the
15
Mullaney v. Wilbur, 421 U.S. 684 (1975).
20
sentencing range as a sentencing factor, not
an element.
Id. at 242-43.
Addressing these concerns, in Apprendi v. New
Jersey, 530 U.S. 466 (2000), this Court considered
whether due process requires proof beyond a reasonable doubt found by a jury to support any fact that increases a statutory maximum sentence. This Court
held that it does: “ ‘[U]nder the Due Process Clause of
the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment, any fact (other
than prior conviction) that increases the maximum
penalty for a crime must be charged in an indictment,
submitted to a jury, and proven beyond a reasonable
doubt.’ ” Id. at 476 (quoting Jones, 526 U.S. at 243 n. 6).
New Jersey relied on McMillan, claiming it allowed the
state to increase a defendant’s maximum sentence using the preponderance standard because penalty enhancements proved at sentencing are not elements of
a crime. Id. at 493. But this Court disagreed, explaining that “[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490
(emphasis added).16
16
In Ring v. Arizona, 536 U.S. 584, 605 (2002), this Court
reaffirmed its conclusion in Apprendi that the characterization of
a fact as an “element” or a “sentencing factor” is not determinative
of whether a judge or jury must decide the fact. “If a State makes
an increase in a defendant’s authorized punishment contingent
on the finding of a fact, that fact—no matter how the State labels
it—must be found by a jury beyond a reasonable doubt.” Id. at
602.
21
This Court clarified the scope of Apprendi’s holding in Blakley v. Washington, 542 U.S. 296, 303-04
(2004) (citations omitted):
Our precedents make clear . . . that the “statutory maximum” for Apprendi purposes is the
maximum sentence a judge may impose solely
on the basis of the facts reflected in the jury
verdict or admitted by the defendant. . . . In
other words, the relevant “statutory maximum” is not the maximum sentence a judge
may impose after finding additional facts, but
the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not
allow, the jury has not found all the facts
“which the law makes essential to the punishment,” . . . and the judge exceeds his proper
authority.
Blakely held that a sentence enhanced above the
statutory maximum violates the Sixth Amendment
and Apprendi if the enhancement depends on finding
facts beyond those admitted by the defendant or
found by the jury. Id. at 304. In so holding, the Court
distinguished McMillan and Williams, reasoning that
“McMillan involved a sentencing scheme that imposed
a statutory minimum if a judge found a particular
fact,” and “Williams involved an indeterminate-sentencing regime that allowed a judge (but did not compel him) to rely on facts outside the trial court record
in determining whether to sentence a defendant to
death.” Id. at 304-05. Blakely was thus neither governed by nor in conflict with McMillan or Williams, as
22
“neither case involved a sentence greater than what
state law authorized on the basis of the verdict alone.”
Id. at 305.
In United States v. Booker, 543 U.S. 220 (2005),
this Court rejected on Sixth Amendment grounds the
constitutionality of the Federal Sentencing Guidelines.
Writing for the Court, Justice STEVENS explained that
Apprendi and Blakely illustrate that a defendant has
a “right to have the jury find the existence of ‘any particular fact’ that the law makes essential to his punishment.” Id. at 232 (STEVENS, J., opinion of the Court)
(quoting Blakely, 542 U.S. at 301). The Guidelines violated this holding because they required judges to impose enhanced sentences based on judicially found
facts (other than prior convictions) neither admitted by
the defendant nor found by the jury beyond a reasonable doubt. Id. at 244. “[E]veryone agrees,” explained
Justice STEVENS, “that the constitutional issues presented by these cases would have been avoided entirely
if Congress had omitted from the [Sentencing Reform
Act] the provisions that make the Guidelines binding
on district judges[.]” Id. at 233.
The Government argued that both Witte and Watts
precluded the application of Blakely to the Sentencing
Guidelines, but this Court disagreed: “In neither Witte
nor Watts was there any contention that the sentencing enhancement had exceeded the sentence authorized by the jury verdict in violation of the Sixth
Amendment. The issue we confront today simply was
not presented.” Id. at 240. Rather than doing away
with the Federal Sentencing Guidelines entirely,
23
however, this Court struck down the provisions that
rendered the guidelines mandatory. Id. at 245 (BREYER,
J., opinion of the Court).
Apprendi and Blakely prohibited the use of judicial fact-finding to increase a statutory maximum
sentence, but did not define the constitutional limits
of judicial fact-finding used to increase a mandatory
minimum. This Court tackled that issue in Alleyne v.
United States, 570 U.S. 99 (2013). At the outset, Justice THOMAS, joined by Justice SOTOMAYOR, Justice
GINSBURG, and Justice KAGAN,17 addressed the tension
between the holding in Apprendi—any fact that increases a statutory maximum is an element and must
be submitted to the jury and found beyond a reasonable doubt—and that in McMillan—facts found to increase a mandatory minimum are sentencing factors
and not elements of the crime so long as the legislature
has defined them as such. Id. at 105-06 (THOMAS, J.,
plurality opinion). Discerning no difference between
facts that increase a mandatory maximum and those
that increase a mandatory minimum, Justice THOMAS
explained that “[b]oth kinds of facts alter the prescribed range of sentences to which a defendant is exposed
. . . .” Id. at 108 (emphasis added). Justice THOMAS thus
opined that the Sixth Amendment right to a trial by
jury, in conjunction with the Due Process Clause, requires that any “[f ]acts that increase the mandatory
minimum sentence are therefore elements and must
17
Justice BREYER concurred in the judgment and joined
Parts I, III-B, III-C, and IV of the opinion.
24
be submitted to the jury and found beyond a reasonable doubt.” Id.18
Writing for a majority of the Court, Justice
THOMAS explained that, “because the legally prescribed range is the penalty affixed to the crime, . . . it
follows that a fact increasing either end of the range
produces a new penalty and constitutes an ingredient
of the offense.” Id. at 112 (THOMAS, J., opinion of the
Court). In rejecting a judge’s authority to find facts
increasing a mandatory minimum sentence, however,
the majority in Alleyne took care to note that the opinion did not render unconstitutional the exercise of sentencing discretion within the limits prescribed by law:
Our ruling today does not mean that any fact
that influences judicial discretion must be
found by a jury. We have long recognized that
broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Amendment. See, e.g., Dillon v. United States,
560 U.S. [817, 828-29 (2010)] (“[W]ithin established limits[,] . . . the exercise of [sentencing]
discretion does not contravene the Sixth
Amendment even if it is informed by judgefound facts” (emphasis deleted and internal
quotation marks omitted)); Apprendi, 530 U.S.
[at 481] (“[N]othing in this history suggests
that it is impermissible for judges to exercise
discretion—taking into consideration various
18
Elaborating on the connection between crime and punishment, Justice THOMAS opined that a “crime” consists of “every fact
which ‘is in law essential to the punishment sought to be inflicted.’” Id. at 109 (quoting 1 J. Bishop, CRIMINAL PROCEDURE 50
(2d ed. 1872)).
25
factors relating both to offense and offender—
in imposing a judgment within the range prescribed by statute”). This position has firm
historical roots as well. As Bishop explained:
“[W]ithin the limits of any discretion
as to the punishment which the law
may have allowed, the judge, when
he pronounces sentence, may suffer
his discretion to be influenced by
matter shown in aggravation or mitigation, not covered by the allegations of the indictment.” Bishop § 85,
at 54.
“[E]stablishing what punishment is available
by law and setting a specific punishment
within the bounds that the law has prescribed
are two different things.” Apprendi, supra, [at
519] (THOMAS, J., concurring). Our decision today is wholly consistent with the broad discretion of judges to select a sentence within the
range authorized by law.
Alleyne, 570 U.S. at 116-17 (brackets in Alleyne except first, fourth, and ninth sets; footnote omitted).
Considered in tandem, this Court’s precedents
make clear that the presumption of innocence requires
proof beyond a reasonable doubt to establish every element of a charged crime. Winship, 397 U.S. at 364.
However, once a valid conviction is obtained, sentencing judges may consult broad sources and types of information to craft a sentence, unrestrained by the
same due-process guarantees that attend trial. Williams, 337 U.S. at 246-48. Due process requires proof
26
beyond a reasonable doubt to establish every element
of an offense, but the same standard is not required
for sentencing factors. McMillan, 477 U.S. at 84-86.
When a fact represents a sentencing factor, the preponderance standard generally satisfies due process. Id. at
91-92.
Watts, 519 U.S. at 155-57, resolved that an acquittal does not prove a defendant’s innocence as to conduct underlying the acquitted charge, and so due
process does not preclude a sentencing judge from
considering that conduct at sentencing for a separate
offense, so long as the conduct is proved by a preponderance of the evidence. In Apprendi, 530 U.S. at 490,
this Court pushed back on, but did not expressly overrule, McMillan’s statement that states have latitude to
decide which facts are “elements” of an offense and
which are “sentencing factors” that need only be
proved by a preponderance of the evidence at sentencing. A state’s characterization of the fact is not what
matters; rather, when a fact—regardless of how the
state labels it—“increases the penalty for a crime beyond the prescribed statutory maximum[,] [that fact]
must be submitted to a jury, and proved beyond a reasonable doubt.” Id. (emphasis added).
Blakely, 542 U.S. at 303-05, affirmed Apprendi’s
holding, adding to the conversation the reasons McMillan and Williams were distinguishable: McMillan involved a sentencing scheme that imposed a statutory
minimum if a judge found a particular fact, and Williams involved an indeterminate-sentencing scheme
that allowed, but did not compel, a sentencing judge to
27
rely on facts outside the record to fashion a sentence.
Finally, Alleyne, 570 U.S. at 112, applied Apprendi’s
rule with equal force to facts that increased a defendant’s mandatory minimum because both kinds of
facts “alter[ ] the prescribed range of sentences to
which a defendant is exposed.”
Admittedly, Alleyne’s holding would have dictated
a different result in McMillan. But a majority of the
Court in Alleyne did not overrule McMillan19 and the
Court did not address or discredit McMillan’s proposition, reaffirmed in Watts, that the preponderance
standard at sentencing generally satisfies due process.20 The Alleyne Court did, however, emphasize that
the “penalty affixed to the crime” is the “legally prescribed” range supported by the jury’s verdict, id. at
112, and that nothing in its opinion limited “the broad
discretion of judges to select a sentence within the
range authorized by law.” Id. at 117 (emphasis added).
19
See Alleyne, 570 U.S. at 119-20 (SOTOMAYOR, J., concurring); 570 U.S. at 124 (BREYER, J., concurring in part and concurring in the judgment) (voting only to overrule Harris v. United
States, 536 U.S. 545 (2002)).
20
McMillan explained that state legislatures generally have
latitude to define which facts constitute elements of an offense
and which constitute sentencing factors, applying that proposition to a statute that allowed judicially-found facts to increase a
mandatory minimum sentence. That application was inconsistent
with the holding in Alleyne. But Alleyne’s holding does not mandate a similar rejection of the proposition from McMillan that due
process is satisfied when true sentencing factors are proved by a
preponderance of the evidence.
28
Applied here, the statutory range for respondent’s
offense of conviction, felon-in-possession, was “life or
. . . a lesser term” of years given his status as a
fourth-offense habitual felony offender. MICH. COMP.
LAWS § 750.224f(5); MICH. COMP. LAWS § 769.12(1)(b).21
Accordingly, the jury’s guilty verdict for the felon-inpossession charge authorized the sentencing judge to
impose a sentence of life or any term of years; this was
the penalty affixed, by law, to the crime. Respondent’s
sentence of 240 to 400 months’ imprisonment fell
within the statutory range authorized by the jury’s
verdict. The sentencing judge did not offend due process because he considered conduct underlying an acquitted charge to fashion a sentence within that
statutorily prescribed range. See Alleyne, 570 U.S. at
117 (“[E]stablishing what punishment is available by
law and setting specific punishment within the bounds
that the law has prescribed are two different things.”)
(quotation marks and citation omitted).
The sentencing judge also did not violate the presumption of innocence, which requires proof beyond a
21
Had the trial court chosen to impose a life sentence, it
would not have been permitted to impose a term of years for the
minimum sentence. MICH. COMP. LAWS § 769.9(2) (“The court
shall not impose a sentence in which the maximum penalty is life
imprisonment with a minimum for a term of years included in the
same sentence.”). Generally, when a sentence involves a term of
years, MICH. COMP. LAWS § 769.34(2)(b) provides that the minimum sentence may not exceed 2/3 of the statutory maximum. See
also People v. Tanner, 199 N.W.2d 202 (Mich. 1972). However, the
2/3s rule does not apply when a defendant is convicted of an offense punishable by a prison sentence of life or any term of years.
People v. Harper, 739 N.W.2d 523, 534 n. 31 (Mich. 2007).
29
reasonable doubt to establish every element of the offense of conviction, because the fact that respondent
killed Pruitt was not an element of his convicted offense. This Court explained in Alleyne that a fact is
an element of a crime only if it increases the statutorily prescribed range of penalties to which a defendant
is exposed. Id. at 116. But here, the statutorily prescribed range of penalties affixed to respondent’s felonin-possession conviction—life or any term of years—
remained the same regardless of whether the sentencing judge found that respondent killed Pruitt. The
Michigan Sentencing Guidelines recommended that
the sentencing judge impose a term-of-years sentence,
with the minimum falling between 22 and 76 months’
imprisonment, but this recommendation was not binding on the sentencing judge. See Lockridge, 870 N.W.2d
at 520-21. This Court’s precedents permitted the sentencing judge to consider conduct underlying respondent’s acquitted charge of murder when fashioning a
sentence, within the statutorily prescribed range, for
his felon-in-possession conviction.22 The Michigan Supreme Court erred by holding otherwise.23
22
This is not to say that sentencing based on acquitted
conduct does not raise important public policy concerns. That a
practice may offend public policy, however, does not make it unconstitutional. See United States v. Settles, 530 F.3d 920, 923-24
(D.C. Cir. 2008) (affirming the constitutionality of considering
acquitted conduct at sentencing under this Court’s precedents,
while acknowledging the public policy concerns of such practice
and the authority of Congress and the Sentencing Commission to
intervene).
23
Justice VIVIANO opined in his concurring opinion that respondent’s sentence violated the Sixth Amendment because the
30
III. The Michigan Supreme Court Erroneously
Rejected the Due-Process Holdings From
McMillan and Watts.
This Court first held in McMillan, and later reaffirmed in Watts, that the preponderance standard at
sentencing generally satisfies due process. The Michigan Supreme Court, however, concluded that McMillan did not apply because it involved uncharged
rather than acquitted conduct, only the latter of which
enjoys protection under the presumption of innocence.
“[U]ncharged and therefore unconsidered-by-a-jury
conduct is apples to acquitted conduct’s oranges.” App.
18. The majority reasoned that, although a judge may
rely on uncharged conduct at sentencing, allowing
the consideration of conduct underlying an acquitted
sentence would be “unreasonable” if the judge could not consider
Pruitt’s death. App. 36. Federal circuit courts, however, have uniformly rejected the proposition that judicial fact-finding used to
support a sentence imposed within the statutory range violates
a defendant’s constitutional rights. See, e.g., United States v. Benkahla, 530 F.3d 300, 312 (4th Cir. 2008); United States v. Hernandez, 633 F.3d 370, 374 (5th Cir. 2011); United States v. Ashqar,
582 F.3d 819, 824 (7th Cir. 2009); United States v. Treadwell, 593
F.3d 990, 1017-18 (9th Cir. 2010); United States v. Redcorn, 528
F.3d 727, 745-46 (10th Cir. 2008). In 2014, Justice SCALIA, joined
by Justice THOMAS and Justice GINSBURG, dissented from an order
denying a petition for a writ of certiorari on this question, opining
that “[i]t unavoidably follows 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.” Jones v. United States, 135 S. Ct. 8, 8
(2014) (SCALIA, J., dissenting). A majority of the members of this
Court, however, have not adopted this position.
31
charge permits a judge to “punish[ ] [the defendant] as
if he had been convicted of all the charges.” App. 17.
Apprendi and Alleyne support that a fact is an
element of a crime entitled to the presumption of
innocence only when that fact alters the statutorily
prescribed sentencing range affixed to the sentencing offense. Yet, the statutorily prescribed sentencing
range applicable to respondent’s felon-in-possession
conviction—life or any term of years—remained the
same regardless of whether the judge found at sentencing that respondent killed Pruitt. It therefore cannot
be said that, by imposing a sentence within the prescribed range for the offense of conviction, the sentencing judge was also punishing respondent for the
acquitted offense. The Michigan Supreme Court’s rationale misconstrues the concept of “punishment” established by this Court’s precedents.
“[A]n acquittal on criminal charges does not prove
that the defendant is innocent; it merely proves the
existence of reasonable doubt as to his guilt.” United
States v. One Assortment of 89 Firearms, 465 U.S. 354,
361 (1984). Likewise, “an acquittal in a criminal case
does not preclude the Government from relitigating an
issue when it is presented in a subsequent action governed by a lower standard of proof.” Dowling v. United
States, 493 U.S. 342, 349 (1990) (addressing a due-process claim). In Watts, 519 U.S. at 157, this Court held
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
proved by a preponderance of the evidence.”
32
The Michigan Supreme Court rejected Dowling,
reasoning that the case involved acquitted conduct
presented at trial in a subsequent prosecution for a
separate crime rather than at sentencing. App. 20-21.
The majority thus implicitly ruled that acquitted
conduct presented at trial is entitled to less dueprocess protection than the same conduct presented at
sentencing. In Williams, 337 U.S. at 246, however, this
Court emphasized that tribunals passing on the guilt
of a defendant have always operated under stricter
procedural limitations than those deciding the “kind
and extent of punishment to be imposed within limits
fixed by law.” Williams further explained that the “dueprocess clause should not be treated as a device for
freezing the evidential procedure of sentencing in the
mold of trial procedure.” Id. at 251. The Michigan Supreme Court’s conclusion that due process is more robust at sentencing than trial is remarkable.
The Michigan Supreme Court also rejected Watts,
claiming that in Booker, 543 U.S. at 240 n. 4, this Court
“explicitly limited [Watts] to the double-jeopardy context.” App. 21. The majority assigned undue weight to
the footnote in Booker. In Booker, this Court reasoned
that Watts did not apply to the Sixth Amendment jurytrial issues raised before it because Watts “presented a
very narrow question regarding the interaction of the
Guidelines with the Double Jeopardy Clause[.]” 543
U.S. at 240 n. 4. The Booker Court explained it was
therefore “unsurprising that we failed to consider fully
the issues presented to us in these cases.” Id. (emphasis added). Booker did not overrule Watts, and this
33
Court did not say in Booker that Watts would not apply
to a claim under the Due Process Clause.
More importantly, while Booker correctly explained
that a Sixth Amendment issue “simply was not presented” in Watts, id. at 240, the same cannot be said of
due process. Watts did, indeed, reject the defendants’
claim that the Double Jeopardy Clause precluded the
use of acquitted conduct at sentencing. But the Watts
Court also addressed the proper scope of the preclusive
effect of an acquittal, reaffirming its earlier holdings
that “application of the preponderance standard at
sentencing generally satisfies due process.” Watts, 519
U.S. at 156. Post-Booker, federal circuit courts have
regularly cited Watts to hold that due process does
not prevent a sentencing court from considering conduct underlying an acquitted charge at sentencing.
See, e.g., Swartz, 758 F. App’x at 111-12; White, 551 F.3d
at 383-84 (explaining that Watts involved more than
only a double-jeopardy claim); Dorcely, 454 F.3d at
371 (explaining that Watts involved not only a doublejeopardy claim but provided analysis that also “plainly
encompasses the due process clause”).
Lastly, the Michigan Supreme Court rejected
McMillan because it concluded the opinion was called
into question by Alleyne, and the “interwoven nature
of the United States Supreme Court’s analysis of the
Sixth Amendment and due-process rights ma[de] it
impossible to conclude that its analysis of the former
has been repudiated but its analysis of the latter
34
remains entirely viable.” App. 19-20.24 Alleyne seemingly redefined how we determine which facts are elements of a crime, requiring submission to a jury and
proof beyond a reasonable doubt, and which are sentencing factors, but it did not undermine McMillan’s
holding that sentencing factors (that are truly sentencing factors) may be proved by a preponderance of the
evidence at sentencing.25 The Michigan Supreme Court
erroneously rejected the binding authority of this
Court from McMillan and Watts.
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24
The Michigan Supreme Court’s rejection of McMillan due
to its “interwoven” analysis of the Sixth Amendment and dueprocess issues is curious, given that the court claimed it could
parse the issues so as to resolve the case on due-process grounds
without wading into any Sixth Amendment issues.
25
Justice GORSUCH recently opined that Alleyne “expressly
overruled” McMillan and Harris v. United States, 536 U.S. 545
(2002), after “[f ]inding no basis in the original understanding of
the Fifth and Sixth Amendments” for those opinions. United
States v. Haymond, 139 S. Ct. 2369, 2378 (2019) (GORSUCH, J.,
plurality opinion). Haymond, however, was a plurality opinion
and involved the constitutionality of a congressional statute
that compelled a federal judge to impose a minimum five-year
sentence without empaneling a jury or requiring proof beyond a
reasonable doubt. Id. at 2373. The mandatory nature of the sentencing statute at issue in Haymond makes that case readily distinguishable from the case here.
35
CONCLUSION
This Court should grant the petition for a writ of
certiorari. Alternatively, the Court could consolidate
this case with Asaro v. United States (No. 19-107) and
grant both petitions or grant the petition in Asaro and
hold this case in abeyance.
Respectfully submitted,
JOHN A. MCCOLGAN, JR.
Saginaw County Prosecuting Attorney
HEIDI M. WILLIAMS
Chief Appellate Attorney
Counsel of Record
CARMEN R. FILLMORE
MELISSA J. HOOVER
Assistant Prosecuting Attorneys
SAGINAW COUNTY PROSECUTOR’S OFFICE
111 S. Michigan Avenue
Saginaw, Michigan 48602
(989) 790-5558
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.