Petition for Writ of Certiorari — Michigan, Petitioner v. Eric Lamontee Beck

Supreme Court briefOct 23, 2019

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App. 1

Michigan Supreme Court

Lansing, Michigan

OPINION Chief Justice:

Justices:

Bridget M. McCormack Stephen J. Markman

Brian K. Zahra

Chief Justice Pro Tem: Richard H. Bernstein

David F. Viviano

Elizabeth T. Clement

Megan K. Cavanagh

FILED July 29, 2019

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE

STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 152934

ERIC LAMONTEE BECK,

Defendant-Appellant.

BEFORE THE ENTIRE BENCH

MCCORMACK, C.J.

In this case, we consider whether a sentencing

judge can sentence a defendant for a crime of which

the defendant was acquitted.

That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge,

App. 2

notwithstanding that acquittal, take the same alleged

crime into consideration when sentencing the defendant for another crime of which the defendant was

convicted? Such a possibility presents itself when a

defendant is charged with multiple crimes. The jury

speaks, convicting on some charges and acquitting on

others. At sentencing for the former, a judge might seek

to increase the defendant’s sentence (under the facts of

this case, severely increase, though we consider the

question in principle) because the judge believes that

the defendant really committed one or more of the

crimes on which the jury acquitted.

Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because

the state failed to prove guilt on those charges beyond

a reasonable doubt. But the jury might have thought it

was somewhat likely the defendant committed them.

Or the judge, presiding over the trial, might reach that

conclusion. And so during sentencing, when a judge

may consider the defendant’s uncharged bad acts under a lower standard—a mere preponderance of the evidence—the judge might impose a sentence reflecting

both the crimes on which the jury convicted, and also

those on which the jury acquitted but which the judge

finds the defendant more likely than not did anyway.

Is that permissible?

We hold that the answer is no. Once acquitted of a

given crime, it violates due process to sentence the defendant as if he committed that very same crime.

App. 3

Because the trial court in this case relied at least

in part on acquitted conduct1 when imposing sentence

for the defendant’s conviction of being a felon in possession of a firearm, we reverse the Court of Appeals,

vacate that sentence, and remand the case to the Saginaw Circuit Court for resentencing.2

FACTS AND PROCEDURAL HISTORY

The defendant was jury-convicted as a fourthoffense habitual offender of being a felon in possession

of a firearm (felon-in-possession) and carrying a firearm during the commission of a felony (felony-firearm),

second offense, but acquitted of open murder, carrying

a firearm with unlawful intent, and two additional

counts of felony-firearm attendant to those charges.

The applicable guidelines range for the felon-inpossession conviction was 22 to 76 months, but the

court imposed a sentence of 240 to 400 months (20 to

331/3 years), to run consecutively to the mandatory

A brief aside on vocabulary: The dissent criticizes the term

“acquitted conduct” as misleading, but that term comes directly

from United Supreme Court precedent. See, e.g., Watts v United

States, 519 US 148, 153-154; 117 S Ct 633; 136 L Ed 2d 554 (1997);

Booker v United States, 543 US 220, 240; 125 S Ct 738; 160 L Ed

2d 621 (2005).

Defendant’s request that the resentencing occur before a

different judge is denied because we are not persuaded that the

standards set forth in People v Hill, 221 Mich App 391, 398; 561

NW2d 862 (1997), require reassigning the case to a different

judge. See People v Hicks, 485 Mich 1060 (2010) (applying the Hill

standards). In all other respects, the defendant’s application for

leave to appeal is denied because we are not persuaded that the

remaining questions presented should be reviewed by this Court.

App. 4

five-year term for second-offense felony-firearm. The

court explained its reasons for the sentence imposed

as, among other things, its finding by a preponderance

of the evidence that the defendant committed the murder of which the jury acquitted him. The court stated

(emphasis added):

With respect to that charge the Court

does find that there are compelling reasons to

go over the guidelines. The Court believes that

. . . to sentence within the guidelines would

not be proportionate to the seriousness of the

defendant’s conduct or the seriousness of his

criminal history. And for that reason the

Court is going to go over the guidelines in setting a sentence that is, in fact, proportionate

to those things.

In addition to that, the maximum—when

you reach the maximum on the guidelines in

this case it’s at 75 points, this is way over that

at 125 points. That is another reason the

Court may, and will go over the guidelines in

this case.

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.

App. 5

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

that there is a preponderance of the evidence

that he did.

And I am not substituting my opinion for

their’s [sic]. I am just bound by a different

standard in this matter. And that is the reason for the Court’s finding that, in fact, this

gentleman, in my opinion, did kill the victim

for no reason other than jealousy. But, at the

very minimum, he was the only person seen

at the scene with a weapon seconds prior. Two

people hearing a shot, and another lady seeing a shoot[ing] by someone she couldn’t identify. And, certainly, provided the weapon. But

in the Court’s opinion, he didn’t just provide it,

he actually was the person who perpetrated the

App. 6

killing. And I do find by a preponderance of the

evidence that that has been shown. And I do

consider that in going over the guidelines in

this matter.

So for the fact that the guidelines don’t

properly—are so far out of scoring of 125,

where 75 is the highest—but, more importantly,

the fact that there was a death. And the Court

finds by a preponderance of the evidence that

this gentleman did shoot the victim.

The defendant appealed and challenged his convictions and sentences on multiple grounds, including

that the trial court erred by increasing his sentence on

the basis of conduct of which he had been acquitted.

The Court of Appeals issued an unpublished opinion

remanding for further sentencing proceedings (a Crosby

remand)3 under People v Steanhouse, 313 Mich App 1;

880 NW2d 297 (2015), aff ’d in part and rev’d in part by

People v Steanhouse, 500 Mich 453; 902 NW2d 327

(2017). People v Beck, unpublished per curiam opinion

of the Court of Appeals, issued November 17, 2015

(Docket No. 321806). The defendant sought leave to appeal in this Court, which first held his application in

A Crosby remand is the remedy this Court adopted in People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015), for the Sixth

Amendment violation that would occur when judicial fact-finding

was used to score the mandatory sentencing guidelines. It involves a remand to the trial court for a determination of whether

that court would have imposed a materially different sentence if

its discretion had not been constrained by the guidelines. Id. at

399. This Court adopted the procedure from United States v

Crosby, 397 F3d 103 (CA 2, 2005). Lockridge, 498 Mich at 395398.

App. 7

abeyance for our decision in Steanhouse.4 People v

Beck, 884 NW2d 283 (Mich, 2016). After issuing our decision in Steanhouse, we ordered oral argument on the

defendant’s application and directed that it be heard

at the same session as oral argument on the prosecution’s application in People v Dixon-Bey, 501 Mich

1066 (2018). People v Beck, 501 Mich 1065, 1065-1066

(2018).5

Among other issues, the defendant challenged the reasonableness of his sentence, and this Court held in Steanhouse that

the proper inquiry when reviewing a sentence for reasonableness is whether the trial court abused its discretion by violating the “principle of proportionality”

set forth in People v Milbourn, 435 Mich 630, 636; 461

NW2d 1 (1990), “which requires sentences imposed by

the trial court to be proportionate to the seriousness of

the circumstances surrounding the offense and the offender.” [Steanhouse, 500 Mich at 459-460.]

Our order asking for oral argument on the application directed the parties to brief the following issues:

(1) the appropriate basis for distinguishing between

permissible trial court consideration of acquitted conduct, see People v Ewing (After Remand), 435 Mich 443,

451-452 [458 NW2d 880] (1990) (opinion by BRICKLEY,

J.); id. at 473 (opinion by BOYLE, J.); see also United

States v Watts, 519 US 148 [117 S Ct 633; 136 L Ed 2d

554] (1997), and an impermissible “independent finding of defendant’s guilt” by a trial court on an acquitted

charge, see People v Grimmett, 388 Mich 590, 608 [202

NW2d 778] (1972), overruled on other grounds by People v White, 390 Mich 245, 258 (1973); see also People v

Fortson, 202 Mich App 13, 21 [507 NW2d 763] (1993);

and (2) whether the trial court abused its discretion by

departing from the guidelines range, where the jury

acquitted the defendant of murder, but the court departed based on its finding by a preponderance of the

App. 8

II.

LEGAL BACKGROUND

CONSTITUTIONAL AMENDMENTS

The defendant argues that the trial court’s reliance on conduct of which he was acquitted to increase

his sentence violates his constitutional rights under

the Sixth and Fourteenth Amendments of the United

States Constitution, as interpreted by the United

States Supreme Court.6 The Sixth Amendment of the

United States Constitution provides in part:

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.

The Fourteenth Amendment of the United States

Constitution provides in relevant part:

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

evidence that the defendant had perpetrated the killing. [Beck, 501 Mich at 1065.]

As in Dixon-Bey, we also invited the Prosecuting Attorneys Association of Michigan and the Criminal Defense Attorneys of Michigan to file amicus curiae briefs.

The defendant has not independently challenged the trial

court’s reliance on acquitted conduct under the Michigan Constitution, so we do not address that issue here.

App. 9

to any person within its jurisdiction the equal

protection of the laws.

CASELAW INTERPRETING THOSE RIGHTS

UNITED STATES SUPREME COURT

As a general matter, the Fourteenth Amendment

incorporates the Sixth Amendment right to a jury trial

in state prosecutions. Duncan v Louisiana, 391 US 145,

149; 88 S Ct 1444; 20 L Ed 2d 491 (1968). And the Fourteenth Amendment right to due process includes “the

presumption of innocence—that bedrock ‘axiomatic

and elementary’ principle whose ‘enforcement lies at

the foundation of the administration of our criminal

law.’ ” In re Winship, 397 US 358, 363; 90 S Ct 1068; 25

L Ed 2d 368 (1970), quoting Coffin v United States, 156

US 432, 453; 15 S Ct 394; 39 L Ed 481 (1895).

The United States Supreme Court has issued a

number of decisions potentially relevant to the issue

presented here—whether a sentencing judge may rely

on acquitted conduct when sentencing a defendant

without violating due process or the right to a jury

trial. In the first, McMillan v Pennsylvania, 477 US 79;

106 S Ct 2411; 91 L Ed 2d 67 (1986), the Court did not

specifically address acquitted conduct. Rather, it considered whether a Pennsylvania statute that allowed

sentencing courts to find by a preponderance of the evidence that the person “visibly possessed a firearm”

during the commission of the offense, resulting in a

five-year mandatory minimum sentence, was constitutional. Id. at 81. That is, the statute permitted the

App. 10

court to find by a preponderance a fact the jury had not

been asked to decide. The Court held that the statute

did not violate the Due Process Clause of the Fourteenth Amendment or the jury-trial guarantee of the

Sixth Amendment. Id. at 91-93. It explained that it

saw no reason to “constitutionaliz[e] burdens of proof

at sentencing.” Id. at 92.

Next came United States v Watts, 519 US 148; 117

S Ct 633; 136 L Ed 2d 554 (1997). Watts did address a

sentencing court’s reliance on acquitted conduct, but in

the context of a claim that the use of such conduct violated the Double Jeopardy Clause of the Fifth Amendment. Citing McMillan, the 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.” Id. at 157. The Court

did not address the Fourteenth Amendment right to

due process.

Around 1999, the United States Supreme Court’s

jurisprudence analyzing a defendant’s due-process and

Sixth Amendment rights underwent a sea change. In

Jones v United States, 526 US 227, 232; 119 S Ct 1215;

143 L Ed 2d 311 (1999), and then Apprendi v United

States, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435

(2000), the Court established the following constitutional rule:7 “[o]ther than the fact of a prior conviction,

Jones was decided on statutory-construction grounds, but

the next term the Apprendi Court concluded that its rule was constitutionally mandated.

App. 11

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.” Apprendi, 530 US at 490. The Court further noted that its

rule was grounded in the “Due Process Clause of the

Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment” and that “[t]he Fourteenth Amendment commands the same answer in

this case involving a state statute.” Apprendi, 530 US

at 476. The “Apprendi revolution,” as it has been called,

has wrought significant changes in sentencing practices in state and federal courts. See generally Booker

v United States, 543 US 220; 125 S Ct 738; 160 L Ed 2d

621 (2005) (relying on Apprendi’s rule to strike down

the mandatory federal sentencing guidelines and

make them advisory only); Lockridge, 498 Mich at 399

(doing the same to Michigan’s mandatory sentencing

guidelines).

MICHIGAN SUPREME COURT

This Court has also addressed the use of acquitted

conduct, albeit in a case with a fractured set of opinions

in which it is not entirely clear what rule of law commanded a majority. In People v Ewing (After Remand),

435 Mich 443; 458 NW2d 880 (1990), there were three

substantive opinions:8 Justice BRICKLEY’s lead opinion,

Justice ARCHER’s opinion concurring in part and dissenting in part, and Justice BOYLE’s concurring opinion

Justice CAVANAGH wrote a brief two-sentence concurring

opinion that was silent on reasoning (joined by Justice LEVIN).

App. 12

(joined by Justices RILEY and GRIFFIN) that dissented

in result. Justice BOYLE’s opinion blessed the practice

of sentencing courts relying on acquitted conduct as

long as it was proven by a preponderance of the evidence. Id. at 473 (opinion by BOYLE, J.). Justice BOYLE

relied primarily on McMillan and Dowling v United

States, 493 US 342, 349; 110 S Ct 668; 107 L Ed 2d 708

(1990), to support that conclusion. Ewing (After Remand), 435 Mich at 472-473 & n 15.

Justice BRICKLEY’s lead opinion is harder to parse.

He agreed with Justice BOYLE that “the mere fact of a

prior acquittal of charges whose underlying facts are

properly made known to the trial judge is not, without

more, sufficient reason to preclude the judge from taking those facts into account at sentencing.” Id. at 451

(opinion by BRICKLEY, J.). Yet his opinion proceeds to

say that a judge’s right to rely on such conduct might

be limited under some circumstances not before the

Court. Id. at 453-455. Among these caveats is the

statement that “we are not presented with the issue

whether a defendant may be punished for a crime for

which no conviction was obtained; this is clearly unconstitutional.” Id. at 454. Finally, Justice BRICKLEY

agreed with the majority of justices who concluded a

remand to the trial court was required to “test the accuracy of these allegations regarding his conduct.” Id.

at 446. Thus, the binding rule of law from Ewing, if any,

is murky at best.9

Perhaps for this reason, this Court has never cited Ewing for

any binding legal rule. Notwithstanding these questions, much of

App. 13

III.

ANALYSIS

The question whether the Sixth and Fourteenth

Amendments permit the use of acquitted conduct to

increase a defendant’s sentence presents issues of constitutional interpretation, which we review de novo.

Lockridge, 498 Mich at 373. That means that we review

the issues independently, with no required deference

to the trial court. Millar v Constr Code Auth, 501 Mich

233, 237; 912 NW2d 521 (2018).

Federal courts that have addressed constitutional

challenges to the use of acquitted conduct at sentencing have relied almost entirely on McMillan and Watts

to reject both due-process and Sixth Amendment challenges. See, e.g., United States v Horne, 474 F3d 1004,

1006 (CA 7, 2007) (citing McMillan and Watts but not

identifying the constitutional right at issue); United

States v Dorcely, 372 US App DC 170, 175-177 (rejecting

both due-process and Sixth Amendment arguments,

the dissent’s argument relies on Ewing and treats it as binding

precedent. For reasons we have explained, we disagree with the

dissent’s reading of Ewing. Moreover, it is worth noting that Justice

BRICKLEY’s lead opinion provided the fourth vote for the disposition

in Ewing: a remand to the trial court for further development of the

sentencing record; Justice BOYLE and the justices joining her opinion would have simply reinstated the trial court’s sentence. Thus,

even assuming that Justice BRICKLEY agreed with the dissent in

some theoretical but undefined way about acquitted conduct, it is

difficult to see how that agreement could equate to a binding legal

rule given the difference in the votes as to the disposition of the

case. “[S]tatements concerning a principle of law not essential to

determination of the case are obiter dictum and lack the force of

an adjudication[.]” Roberts v Auto-Owners Ins Co, 422 Mich 594,

597-598; 374 NW2d 905 (1985).

App. 14

citing McMillan and Watts); United States v Faust, 456

F3d 1342, 1347-1348 (CA 11, 2006) (finding no Sixth

Amendment violation, discussing Watts); United States

v Boney, 298 US App DC 149, 160-161; 977 F2d 624

(1992) (due process) (collecting cases). We see several

problems with relying on those cases for due-process

purposes,10 and we address each of these concerns in

greater detail below.

McMILLAN

There are at least three problems with relying on

McMillan as dispositive of claims that the use of acquitted conduct does not violate due process. First,

McMillan did not involve the use of acquitted conduct.

Second, its constitutional analysis rests on very shaky

footing in light of intervening caselaw. Third, even if it

is only McMillan’s Sixth Amendment analysis that has

We decline to reach the defendant’s argument that the use

of acquitted conduct violates the Sixth Amendment right to a jury

trial under Apprendi and its progeny. To our knowledge, although

some federal district courts have opined that the use of acquitted

conduct is unconstitutional and declined to consider it at sentencing, no appellate court in the country has accepted that argument.

See, e.g., United States v White, 551 F3d 381, 384-385 (CA 6, 2008)

(finding no Sixth Amendment problem with relying on acquitted

conduct when sentencing a defendant under the advisory guidelines system because “[b]y freeing a district court to impose a

non-guidelines sentence, Booker pulled out the thread that holds

White’s Sixth Amendment claim together”). But there has been

persistent criticism of that uniformity. See, e.g., White, 551 F3d

at 387 (Merritt, J., dissenting) (arguing that the defendant’s sentence, as increased on the basis of acquitted conduct, “represents

an as-applied violation of White’s Sixth Amendment rights” under

Apprendi).

App. 15

been abrogated, the intertwining nature of the Sixth

Amendment right to a jury trial and the Fourteenth

Amendment right to due process makes it all but impossible not to view its due-process analysis as significantly compromised.

First problem: McMillan did not involve a trial

court’s reliance on acquitted conduct, and so it never

addressed this unique question.11 Thus, its general

holding that it does not violate due process or the Sixth

Amendment for the trial court to find facts by a preponderance of the evidence when imposing sentence is

not obviously applicable.12 Acquitted conduct is, of

To the extent McMillan’s analysis is grounded in the general principle from Williams v New York, 337 US 241, 69 S Ct

1079; 93 L Ed 1337 (1949), that “[s]entencing courts have traditionally heard evidence and found facts without any prescribed

burden of proof at all,” McMillan, 477 US at 91, it is noteworthy

that Williams itself limited the breadth of its holding by asserting

that “[w]hat we have said is not to be accepted as a holding that

the sentencing procedure is immune from scrutiny under the dueprocess clause,” Williams, 337 US at 252 n 18; see also Townsend

v Burke, 334 US 736, 741; 68 S Ct 1252; 92 L Ed 1690 (1948)

(holding that sentencing a defendant on the basis of untrue assumptions about his criminal record violated due process).

McMillan itself has language recognizing that its rule may

not apply outside the particular question it addressed. See McMillan, 477 US at 91 (stating that “we have little difficulty concluding that in this case the preponderance standard satisfies due

process”) (emphasis added); id. at 92 (stating that “[w]e see nothing in Pennsylvania’s scheme that would warrant constitutionalizing burdens of proof at sentencing”) (emphasis added). Other

courts have also recognized that McMillan and related Supreme

Court cases, “while generally endorsing rules that permit sentence enhancements to be based on conduct not proved to the

same degree required to support a conviction, have not embraced

App. 16

course, different from uncharged conduct—acquitted

conduct has been formally charged and specifically

adjudicated by a jury. While it is true that McMillan

declined to “constitutionaliz[e] burdens of proof at sentencing,” McMillan, 477 US at 92, that disinclination

was expressed in an answer to a different question

than the one we answer now.

Acquitted conduct is already constitutionalized.

Due process encompasses the requirement that the

state prove the charges beyond a reasonable doubt, to

be sure. But that’s not all it guarantees.13 See Faust,

456 F3d at 1352 (Barkett, J., concurring specially)

(concluding that the use of acquitted conduct at sentencing violates “other aspects of ‘the requirement of

fundamental fairness’ embodied in the constitutional

right to due process of law”), quoting Winship, 397 US

at 369 (Harlan, J., concurring). It also encompasses the

presumption of innocence and the requirement of notice.

A defendant is entitled to a presumption of innocence as to all charged conduct until proven guilty beyond a reasonable doubt, and that presumption is

the concept that those rules are free from constitutional constraints.” United States v Lombard, 72 F3d 170, 176 (CA 1, 1995).

See, e.g., Faust, 456 F3d at 1351 n 2 (Barkett, J., concurring specially) (“I address my disagreement with McMillan primarily in order to distinguish the due process claim rejected by

the Supreme Court in that case from the very different and particular due process problem . . . that arises when a defendant is

sentenced on the basis of charges of which he has actually been

acquitted.”).

App. 17

supposed to do meaningful constitutional work as long

as it applies. At least that’s what we tell the accused14

and the jury15 about how it works. We can think of no

reason that a jury’s finding the defendant not guilty of

a charge undoes that guarantee. In fact, the jury’s view

that the state did not meet its burden of proof should

cut the other way.

Hypotheticals are helpful. Imagine a judge sending a defendant acquitted of all the charges against

him to prison because the judge believed the evidence

supported some punishment. Or a judge in a bench

trial acquits a defendant of some charges but convicts

of others and then punishes him as if he had been convicted of all the charges.

The difference between acquitted conduct and uncharged bad acts presented at sentencing is critical

and constitutional. Acquitted conduct shows up at sentencing in the company of the due-process protection

of the presumption of innocence; uncharged conduct

does not, says McMillan.

Due process also requires adequate notice. A defendant sentenced for conduct the jury acquitted him

of surely has a notice complaint. See, e.g., United

States v Canania, 532 F3d 764, 777 (CA 8, 2008)

(Bright, J., concurring) (stating that the use of acquitted conduct at sentencing violates the due-process

right to notice because “[i]t is not unreasonable for a

MCR 6.610(E)(3)(b)(iv); MCR 6.302(B)(3)(b) and (c).

M Crim JI 1.9; M Crim JI 3.2.

App. 18

defendant to expect that conduct underlying a charge

of which he’s been acquitted to play no determinative

role in his sentencing”); see also Ewing, 435 Mich at

454 (opinion by BRICKLEY, J.) (stating that before acquitted conduct may be used to enhance a sentence, a

defendant “should be able to test the accuracy of those

allegations” so that the judge “may hear argument

from the parties and decide how to view [acquitted conduct] testimony in light of the acquittal”). Because

McMillan concerned uncharged conduct and not acquitted conduct, it does not address these constitutional dueprocess questions. Nor could it have—uncharged and

therefore unconsidered-by-a-jury conduct is apples to

acquitted conduct’s oranges.

Second problem: McMillan’s continued vitality is

significantly in question after Alleyne v United States,

570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013). At

minimum, its Sixth Amendment analysis has been

overruled in everything but name.16

The Alleyne Court did us no favors in that regard given

that arguably, but only arguably, five justices said that Alleyne

overruled McMillan. Alleyne, 570 US at 119-120 (Sotomayor, J.,

concurring, joined by Ginsburg and Kagan, JJ.) (noting that “Five

Members of the Court” in Harris v United States, 536 US 545; 122

S Ct 2406; 153 L Ed 2d 524 (2002), recognized that McMillan’s

analysis was inconsistent with Apprendi and that McMillan survived Harris only because Justice Breyer could not “yet accept”

Apprendi); see id. at 124 (Breyer, J., concurring in part and concurring in the judgment) (agreeing with overruling Harris because “the time has come to end this anomaly in Apprendi’s

application” but not mentioning McMillan) (emphasis added); id.

at 133 (Alito, J., dissenting) (characterizing the majority opinion

as “cast[ing] aside” McMillan as well as Harris). But the evidence

App. 19

Third problem: even if McMillan’s due-process

analysis remains superficially viable, the complementary analysis of the Sixth Amendment jury-trial right

and the Fourteenth Amendment due-process right necessarily calls it into question as a practical matter. See

Apprendi, 530 US at 476 (stating that its rule is

grounded in the notice and jury-trial rights of the Sixth

Amendment as well as the Fourteenth Amendment);

Alleyne, 570 US at 104 (opinion by Thomas, J.) (stating

that it is the Sixth Amendment jury-trial right “in conjunction with the Due Process Clause” that requires

that each element of a crime be proved to the jury beyond a reasonable doubt). The interwoven nature of

the United States Supreme Court’s analysis of the

Sixth Amendment and due-process rights makes it impossible to conclude that its analysis of the former has

is mounting, and it suggests McMillan’s due-process analysis has

become equally untenable. See United States v Haymond, 588 US

___; ___ S Ct ___; ___ L Ed 2d ___ (2019) (Docket No. 17-1672)

(opinion by Gorsuch, J.); slip op at 9-10 (stating that Alleyne found

“no basis in the original understanding of the Fifth and Sixth

Amendments for McMillan and Harris” and “expressly overruled

those decisions”).

Several courts post-Alleyne have specifically stated that Alleyne overruled McMillan, even though the majority opinion in

Alleyne did not explicitly do so. See, e.g., Robinson v Woods, 901

F3d 710, 715 (CA 6, 2018) (stating that “Alleyne was a watershed

opinion, overruling two prior precedents—Harris . . . and McMillan”); United States v Cassius, 777 F3d 1093, 1095 (CA 10, 2015)

(stating that in Alleyne “the Supreme Court explicitly overruled

Harris and McMillan”); Commonwealth v Hanson, 623 Pa 388,

414; 82 A3d 1023 (2013) (characterizing Alleyne as having “overruled” Harris and McMillan).

App. 20

been repudiated but its analysis of the latter remains

entirely viable.

That said, while we believe McMillan rests on

an extremely shaky foundation, we leave to the United

States Supreme Court “the prerogative of overruling

its own decisions.” Rodriguez de Quijas v Shearson/

American Express, Inc, 490 US 477, 484; 109 S Ct 1917;

104 L Ed 2d 526 (1989). Thus, it is because McMillan

did not involve acquitted conduct that we conclude

that it does not answer the question here.

WATTS

Watts is in many ways the most difficult to dispense with, and also the most difficult to parse. Watts

directly addressed a sentencing court’s use of acquitted

conduct at sentencing. But though its language was

not always specific about the constitutional right it examined,17 in a later case the Court made clear that

The Watts Court at one point quoted Dowling for the proposition that “ ‘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.’ ” Watts,

519 US at 156, quoting Dowling, 493 US at 349. Dowling, unlike

Watts, was both a double-jeopardy and a due-process case. But it

also involved a different question from the one presented here:

the issue in Dowling was whether the trial court could admit

other-acts evidence in a subsequent prosecution when that otheracts evidence involved conduct of which the defendant had previously been acquitted. It did not involve whether the trial court

could punish the defendant more severely on the basis of that acquitted conduct. See also People v Oliphant, 399 Mich 472, 499500; 250 NW2d 443 (1976) (similarly concluding, 14 years before

Dowling, that the introduction of acquitted conduct as other-acts

App. 21

Watts addressed only a double-jeopardy challenge to

the use of acquitted conduct. Five justices gave it sideeye treatment in Booker and explicitly limited it to the

double-jeopardy context. Booker, 543 US at 240 n 4 (observing that Watts “presented a very narrow question

regarding the interaction of the Guidelines with the

Double Jeopardy Clause, and did not even have the

benefit of full briefing or oral argument,” so it was “unsurprising that we failed to consider fully the issues

presented to us in these cases”).18 As we must, we take

the Court at its word. We therefore find Watts unhelpful in resolving whether the use of acquitted conduct

at sentencing violates due process.19

evidence did not violate double jeopardy, though not addressing

due process).

In a pre-Booker case, Alabama v Shelton, 535 US 654, 665;

122 S Ct 1764; 152 L Ed 2d 888 (2002), the United States Supreme

Court cited Watts for the proposition (made in passing) that a sentencing court’s reliance on acquitted conduct does not violate due

process. We consider that dictum repudiated by Booker’s clear

statement limiting Watts to the double-jeopardy context.

We also find it significant that although Watts stated that

the use of acquitted conduct at sentencing was not constitutionally barred by double-jeopardy principles, its analysis relied substantially on a statute that has no counterpart in Michigan law.

In Watts, the Supreme Court quoted 18 USC 3661 as codifying

the “longstanding principle that sentencing courts have broad discretion to consider various kinds of information.” Watts, 519 US

at 151. That statute provides:

No limitation shall be placed on the information

concerning the background, character, and conduct of

a person convicted of an offense which a court of the

United States may receive and consider for the purpose

of imposing an appropriate sentence.

App. 22

SO NOW WHAT?

Because we conclude that neither McMillan nor

Watts requires us to reject the defendant’s argument

that the use of acquitted conduct to sentence a defendant more harshly violates due process,20 we address

this question on a clean slate.21 A few state courts have

concluded that reliance on acquitted conduct at sentencing violates due process, grounding that conclusion in the guarantees of fundamental fairness and the

presumption of innocence. See State v Cote, 129 NH

358, 375; 530 A2d 775 (1987) (concluding that “the presumption of innocence is as much ensconced in our due

process as the right to counsel,” citing Coffin); State v

Marley, 321 NC 415, 425; 364 SE2d 133 (1988) (also

citing Coffin in support of its conclusion that “due process and fundamental fairness precluded the trial court

from aggravating defendant’s second degree murder

sentence with the single element—premeditation and

The dissent claims that our holding directly contradicts existing precedent, but it primarily cites only federal circuit court

cases that rely on McMillan and Watts to support its claim. But

of course “[a]lthough lower federal court decisions may be persuasive, they are not binding on state courts.” Abela v Gen Motors

Corp, 469 Mich 603, 607; 677 NW2d 325 (2004). And to the extent

the dissent relies on McMillan, Watts, and our decision in Ewing,

we have explained why we don’t find these decisions persuasive

or binding.

While we disagree with the dissent’s view that Ewing is

binding on us, we agree with the dissent that our decision in People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972), overruled in

part on other grounds by People v White, 390 Mich 245; 212 NW2d

222 (1973), is not controlling here for the reasons the dissent

gives.

App. 23

deliberation—which, in this case, distinguished first

degree murder after the jury had acquitted defendant

of first degree murder”).

We agree. When a jury has made no findings (as

with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from

punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.22 But when a jury has specifically determined that

the prosecution has not proven beyond a reasonable

doubt that a defendant engaged in certain conduct, the

defendant continues to be presumed innocent.23 “To

allow the trial court to use at sentencing an essential

element of a greater offense as an aggravating factor,

when the presumption of innocence was not, at trial, overcome as to this element, is fundamentally inconsistent

Unless, of course, those findings mandate an increase in

the mandatory minimum or statutory maximum sentence. See

Apprendi, 530 US 466; Alleyne, 570 US 99.

We respectfully disagree with the dissent’s view that this

is an overbroad reading of the presumption of innocence. The fact

that the prosecution has overcome this presumption as to one

charge does not allow a court to ignore that it has not done so as

to others. See generally Estelle v Williams, 425 US 501, 503; 96 S

Ct 1691; 48 L Ed 2d 126 (1976) (stating that “[t]o implement the

presumption, courts must be alert to factors that may undermine

the fairness of the fact-finding process” and “carefully guard

against dilution of the principle that guilt is to be established by

probative evidence and beyond a reasonable doubt”). Little would

seem to more “undermine the fairness of the fact-finding process”

than having the fact-finder render a not-guilty verdict yet allow

the judge to impose a sentence based on his own conclusion that

the defendant did commit the acquitted offense.

App. 24

with the presumption of innocence itself.” Marley, 321

NC at 425.

Unlike the uncharged conduct in McMillan, conduct that is protected by the presumption of innocence

may not be evaluated using the preponderance-ofthe-evidence standard without violating due process.

While we recognize that our holding today represents

a minority position, one final consideration informs our

conclusion: 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. Regarding jurists, see, e.g.,

Faust, 456 F3d at 1349 (Barkett, J., concurring specially) (“I strongly believe . . . that sentence enhancements based on acquitted conduct are unconstitutional

under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment”); id. at 1351-1352

& n 2; Canania, 532 F3d at 778 (Bright, J., concurring)

(“I wonder what the man on the street might say about

this practice of allowing a prosecutor and judge to say

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

may not mean a thing”); United States v Mercado, 474

F3d 654, 662 (CA 9, 2007) (Fletcher, J., dissenting)

(“Such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant’s equals and

neighbors”); United States v White, 551 F3d 381, 392

(CA 6, 2008) (Merritt, J., dissenting) (“[T]he use of acquitted conduct at sentencing defies the Constitution,

our common law heritage, the Sentencing Reform Act,

and common sense.”); United States v Brown, 892 F3d

App. 25

385, 408 (CA DC, 2018) (Millett, J., concurring) (“[A]llowing courts at sentencing ‘to materially increase the

length of imprisonment’ based on conduct for which

the jury acquitted the defendant guts the role of the

jury in preserving individual liberty and preventing

oppression by the government.”) (citation omitted); id.

at 415 (Kavanaugh, J., dissenting in part) (“[T]here are

good reasons to be concerned about the use of acquitted

conduct at sentencing, both as a matter of appearance

and as a matter of fairness. . . .”).

Regarding commentators, for just a sampling, see

Johnson, The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can be Done

About It, 49 Suffolk Univ L Rev 1, 25 (2016) (quoting

other sources for the proposition that “[t]he use of

acquitted conduct has been characterized as, among

other things, ‘Kafka-esque, repugnant, uniquely malevolent, and pernicious[,]’ ‘mak[ing] no sense as a matter of law or logic,’ and . . . a ‘perver[sion] of our system

of justice,’ as well as ‘bizarre’ and ‘reminiscent of Alice

in Wonderland’ ”); Ngov, Judicial Nullification of Juries: The Use of Acquitted Conduct at Sentencing, 76

Tenn L Rev 235, 261 (2009) (“[T]he jury is essentially

ignored when it disagrees with the prosecution. This

outcome is nonsensical and in contravention of the

thrust of recent Supreme Court jurisprudence.”); Beutler, A Look at the Use of Acquitted Conduct at Sentencing, 88 J Crim L & Criminology 809, 809 (1998)

(observing that “[t]he use of acquitted conduct in sentencing raises due process and double jeopardy concerns that deserved far more careful analysis than

App. 26

they received” in Watts and noting “the fundamental

differences between uncharged and acquitted conduct

which trigger these constitutional concerns”).

This ends here. Unlike many of those judges and

commentators, we do not believe existing United States

Supreme Court jurisprudence prevents us from holding that reliance on acquitted conduct at sentencing is

barred by the Fourteenth Amendment. We hold that it

is.

Because the sentencing court punished the defendant more severely on the basis of the judge’s finding by

a preponderance of the evidence that the defendant

committed the murder of which the jury had acquitted

him,24 it violated the defendant’s due-process protections.

The dissent spends most of its pages denying that this is

what the trial court did, asserting that the court merely sentenced

him as if he had caused a death while committing felon-in-possession

as a fourth-offense habitual offender. But the judge’s comments

at sentencing are clear, as the dissent itself later concedes. Thus,

to the extent the distinction the dissent wants to draw between

sentencing a defendant more harshly based on the conclusion that

the defendant committed an offense of which he was acquitted

and sentencing a defendant “while considering conduct that supported the acquitted charge” is a meaningful one (and we are not

convinced it is), this case plainly involves the former.

Finally, the dissent essentially says that trial courts are free

to sentence defendants for all acquitted charges as long as the

sentence imposed is statutorily permitted in connection with the

convicted charge. Or, put differently, the court can’t impose the

statutory sentence for the acquitted charge if it’s not a permissible sentence for the convicted charge. But that constraint is

App. 27

IV.

CONCLUSION

We hold that due process bars sentencing courts

from finding by a preponderance of the evidence that a

defendant engaged in conduct of which he was acquitted. Because the judge did exactly that in this case, we

vacate the defendant’s sentence for felon-in-possession

and remand that case to the Saginaw Circuit Court for

resentencing consistent with this opinion.

Bridget M. McCormack

David F. Viviano

Richard H. Bernstein

Megan K. Cavanagh

already established by the sentencing statutes. The dissent’s constitutional rule therefore would apply to exactly zero cases.

App. 28

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE

STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 152934

ERIC LAMONTEE BECK,

Defendant-Appellant.

VIVIANO, J. (concurring).

In every criminal trial, jurors are instructed,

“What you decide about any fact in this case is final.”1

But if a judge may increase a defendant’s sentence beyond what the jury verdict alone authorizes—here,

based on the judge’s finding that the defendant committed a crime of which the jury just acquitted him—a

more accurate instruction would read: “What you decide about any fact in this case is interesting, but the

court is always free to disregard it.” Though I concur

fully in the majority opinion, including its holding that

due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I write separately to explain (1) why I

believe that, because defendant’s sentence would not

survive reasonableness review without the judge-found

M Crim JI 2.4(3). A similar instruction is given in every

civil trial. See M Civ JI 2.03 (“Your decision as to any fact in this

case is final.”).

App. 29

fact of homicide, his sentence also violates the Sixth

Amendment, and (2) why I believe more generally that

the consideration of acquitted conduct at sentencing

raises serious concerns under the Sixth Amendment.

The Sixth Amendment enshrines the right to trial

by jury: “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. . . .”2 As the majority recognizes, the United States Supreme Court has not addressed whether the use of acquitted conduct at

sentencing is permissible under the Sixth Amendment.

United States v Watts3 was a Fifth Amendment decision. However, although the Supreme Court has not directly answered this question, I believe that its Sixth

Amendment jurisprudence provides helpful guidance.

I. THE JURY MUST AUTHORIZE ALL FACTS

NECESSARY TO PREVENT A SENTENCE FROM

BEING SUBSTANTIVELY UNREASONABLE

In Blakely v Washington,4 the Supreme Court stated,

“When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the

US Const, Am VI. See also Const 1963, art 1, § 20 (“In every

criminal prosecution, the accused shall have the right to a speedy

and public trial by an impartial jury. . . .”).

United States v Watts, 519 US 148; 117 S Ct 633; 136 L Ed

2d 554 (1997).

Blakely v Washington, 542 US 296, 304; 124 S Ct 2531; 159

L Ed 2d 403 (2004), quoting 1 Bishop, Criminal Procedure (2d ed),

§ 87, p 55.

App. 30

facts ‘which the law makes essential to the punishment,’ . . . and the judge exceeds his proper authority.”

In other words, as Justice Antonin Scalia explained in

his dissent in Oregon v Ice, “[W]e have hitherto considered ‘the central sphere of [the Supreme Court’s] concern’ to be facts necessary to the increase of the

defendant’s sentence beyond what the jury verdict

alone justifies. ‘If the jury’s verdict alone does not authorize the sentence, if, instead, the judge must find an

additional fact to impose the longer term, the Sixth

Amendment requirement is not satisfied.’ ”5 This makes

sense. “A judge’s authority to issue a sentence derives

from, and is limited by, the jury’s factual findings of

criminal conduct.”6

Even under United States v Booker’s7 advisory

guidelines, there can be instances where the jury’s verdict alone does not authorize the punishment because

the punishment would not be reasonable except for the

judge’s finding of fact. In his concurrence in Rita v

United States, Justice Scalia offered two hypothetical

Oregon v Ice, 555 US 160, 178; 129 S Ct 711; 172 L Ed 2d

517 (2009) (Scalia, J., dissenting), quoting Cunningham v California, 549 US 270, 290; 127 S Ct 856; 166 L Ed 2d 856 (2007).

See also Alleyne v United States, 570 US 99, 103; 133 S Ct 2151;

186 L Ed 2d 314 (2013) (“Any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury

and found beyond a reasonable doubt.”).

United States v Haymond, 588 US ___; ___ S Ct ___; ___ L

Ed 2d ___ (2019) (Docket No. 17-1672) (opinion of Gorsuch, J.);

slip op at 6. See also Blakely, 542 US at 308 (“[T]he Sixth Amendment by its terms is . . . a reservation of jury power.”).

United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed

2d 621 (2005).

App. 31

situations that would pose such Sixth Amendment concerns:

First, consider two brothers with similar

backgrounds and criminal histories who are

convicted by a jury of respectively robbing two

banks of an equal amount of money. Next assume that the district judge finds that one

brother, fueled by racial animus, had targeted

the first bank because it was owned and operated by minorities, whereas the other brother

had selected the second bank simply because

its location enabled a quick getaway. Further

assume that the district judge imposes the

statutory maximum upon both brothers, basing those sentences primarily upon his perception that bank robbery should be punished

much more severely than the Guidelines base

level advises, but explicitly noting that the

racially biased decisionmaking of the first

brother further justified his sentence. Now

imagine that the appellate court reverses as

excessive only the sentence of the nonracist

brother. Given the dual holdings of the appellate court, the racist has a valid Sixth Amendment claim that his sentence was reasonable

(and hence lawful) only because of the judicial

finding of his motive in selecting his victim.

Second, consider the common case in

which the district court imposes a sentence

within an advisory Guidelines range that has

been substantially enhanced by certain judgefound facts. For example, the base offense

level for robbery under the Guidelines is 20,

which, if the defendant has a criminal history

App. 32

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

months. If, however, a judge finds that a firearm was discharged, that a victim incurred

serious bodily injury, and that more than $5

million was stolen, then the base level jumps

by 18, producing an advisory range of 235-293

months. When a judge finds all of those facts

to be true and then imposes a within-Guidelines sentence of 293 months, those judgefound facts, or some combination of them, are

not merely facts that the judge finds relevant

in exercising his discretion; they are the legally essential predicate for his imposition of

the 293-month sentence. His failure to find

them would render the 293-month sentence

unlawful. That is evident because, were the

district judge explicitly to find none of those

facts true and nevertheless to impose a 293month sentence (simply because he thinks

robbery merits seven times the sentence that

the Guidelines provide) the sentence would

surely be reversed as unreasonably excessive.8

These hypotheticals illustrate that “for every

given crime there is some maximum sentence that will

be upheld as reasonable based only on the facts found

by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by

some judge-found fact, in violation of the Sixth Amendment.”9 This is because, as stated above, “The Sixth

Rita v United States, 551 US 338, 371-373; 127 S Ct 2456;

168 L Ed 2d 203 (2007) (Scalia, J., concurring) (citations omitted).

Id. at 372.

App. 33

Amendment requires that ‘[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must be

admitted by the defendant or proved to a jury beyond

a reasonable doubt.’ ”10 As Justice Scalia explained in

his dissenting statement in Joseph Jones v United

States:

The Sixth Amendment, together with the

Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either

admitted by the defendant, or “proved to the

jury beyond a reasonable doubt.” Any fact that

increases the penalty to which a defendant is

exposed constitutes an element of a crime, and

“must be found by a jury, not a judge.” We have

held that a substantively unreasonable penalty is illegal and must be set aside. It 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.11

Id. at 370, quoting Booker, 543 US at 244.

Joseph Jones v United States, 574 US ___, ___; 135 S Ct 8,

8; 190 L Ed 2d 279 (2014) (Scalia, J., dissenting) (citations omitted). Justice Scalia contended that the Court should “put an end

to the unbroken string of cases disregarding the Sixth Amendment—or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are

substantively reasonable.” Id. at ___; 135 S Ct at 9. While I do not

App. 34

While the Supreme Court has not yet expressly

adopted (or rejected) Justice Scalia’s Sixth Amendment analysis,12 it appears that the Supreme Court

has been moving toward a more robust interpretation

of the Sixth Amendment. In McMillan v Pennsylvania,13 the Supreme Court summarily dismissed the defendant’s Sixth Amendment challenges to judge-found

facts affecting his sentence. However, after McMillan,

the Supreme Court has found multiple penal schemes

necessarily disagree with Justice Scalia’s criticism of Alleyne, Alleyne, 570 US at 124 (Roberts, C.J., joined by Scalia, J., dissenting), and of substantive reasonableness review, Rita, 551 US at

370 (Scalia, J., concurring in part), Alleyne and substantive reasonableness review are the law of the land. See People v Lockridge, 498 Mich 358, 388; 870 NW2d 502 (2015) (stating that “the

rule from Alleyne applies” to Michigan’s indeterminate sentencing scheme); id. at 392 (stating that departure sentences “will be

reviewed . . . for reasonableness”).

Though, as Justice Scalia noted, the federal circuit courts

have rejected this analysis. Joseph Jones, 574 US at ___; 135 S Ct

at 9 (Scalia, J., dissenting) (“Nonetheless, the Courts of Appeals

have uniformly taken our continuing silence to suggest that the

Constitution does permit otherwise unreasonable sentences supported by judicial factfinding, so long as they are within the statutory range.”), citing United States v Benkahla, 530 F3d 300, 312

(CA 4, 2008); United States v Hernandez, 633 F3d 370, 374 (CA 5,

2011); United States v Ashqar, 582 F3d 819, 824-825 (CA 7, 2009);

United States v Treadwell, 593 F3d 990, 1017-1018 (CA 9, 2010);

United States v Redcorn, 528 F3d 727, 745-746 (CA 10, 2008).

This Court has not addressed this argument, which was not presented in either Lockridge, 498 Mich 358, or People v Steanhouse,

500 Mich 453; 902 NW2d 327 (2017).

McMillan v Pennsylvania, 477 US 79, 93; 106 S Ct 2411;

91 L Ed 2d 67 (1986).

App. 35

in violation of the Sixth Amendment.14 As the majority

notes, McMillan is now all but overruled.15

As the above discussion makes clear, “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.”16 As Justice Scalia seemed to

recognize, the consideration of acquitted conduct at

sentencing is particularly at odds with this rule.17

Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348;

147 L Ed 2d 435 (2000) (“Other 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.”); Blakely, 542 US 296 (holding that the “exceptional” sentence that resulted from the judgefound fact violated the Sixth Amendment); Alleyne, 570 US at 112

(“[A] fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.”); Haymond, 588

US at ___ (opinion by Gorsuch, J.); slip op at 1 (holding that the

mandatory minimum imposed after the defendant violated the

conditions of his supervised release violated the Sixth Amendment).

See ante at 15 n 16; Haymond, 588 US at ___ (opinion by

Gorsuch, J.); slip op at 9-10 (stating that Alleyne found “no basis

in the original understanding of the Fifth and Sixth Amendments

for McMillan and Harris [v United States, 536 US 545; 122 S Ct

2406; 153 L Ed 2d 524 (2002),]” and “expressly overruled those

decisions”).

Joseph Jones, 574 US at ___; 135 S Ct at 8 (Scalia, J., dissenting).

Id. at ___; 135 S Ct at 9 (lamenting the Court’s unwillingness to address the anomaly in its caselaw and noting that the

case at hand was “a particularly appealing case” in which to do

so “because not only did no jury convict these defendants of the

App. 36

Take, for example, the instant case: defendant was

charged with open murder, carrying a firearm with unlawful intent, felon in possession of a firearm (felonin-possession), and three counts of felony-firearm.

Defendant was convicted, as a fourth-offense habitual

offender, of felon-in-possession and second-offense felony-firearm, and acquitted of the other charges. But

the judge found, by a preponderance of the evidence,

that defendant “was the person who perpetrated the

killing,” and the judge imposed a prison sentence of

240 to 400 months, a sentence far in excess of the

guidelines minimum sentence range of 22 to 76 months.

Such a significant departure would clearly not be reasonable based only on the jury’s verdict that defendant

was guilty of felon-in-possession and felony-firearm.18

Thus, the fact that defendant killed the victim was a

“legally essential predicate for his imposition of the . . .

sentence.”19 Because the finding that defendant committed homicide exposed him to a longer sentence, the

Sixth Amendment requires that it be found by a jury

or admitted by the defendant. Here, it was only found

offense the sentencing judge thought them guilty of, but a jury

acquitted them of that offense.”).

Steanhouse, 500 Mich at 459-460 (“[T]he proper inquiry

when reviewing a sentence for reasonableness is whether the trial

court abused its discretion by violating the ‘principle of proportionality’ set forth in People v Milbourn, 435 Mich 630, 636; 461

NW2d 1 (1990), ‘which requires sentences imposed by the trial

court to be proportionate to the seriousness of the circumstances

surrounding the offense and the offender.’ ”).

Rita, 551 US at 372 (Scalia, J., concurring).

App. 37

by a judge. Therefore, I would hold that the sentence

at issue violates the Sixth Amendment.

II.

CONSIDERATION OF ACQUITTED

CONDUCT MORE GENERALLY

While the above analysis would be sufficient to

resolve this case, I have serious concerns regarding

whether acquitted conduct may ever be considered at

sentencing without violating the Sixth Amendment.

These concerns are based on the history of the jury and

the Supreme Court’s Sixth Amendment jurisprudence.

A. THE HISTORICAL

IMPORTANCE OF THE JURY

“[T]he scope of the constitutional jury right must

be informed by the historical role of the jury at common law.”20 As the Supreme Court explained in Apprendi v New Jersey:21

We do not suggest that trial practices cannot

change in the course of centuries and still remain true to the principles that emerged from

the Framers’ fears “that the jury right could

be lost not only by gross denial, but by erosion.” But practice must at least adhere to

the basic principles undergirding the requirements of trying to a jury all facts necessary to

Ice, 555 US at 170.

Apprendi, 530 US at 483-484.

App. 38

constitute a statutory offense, and proving

those facts beyond reasonable doubt.

Practice must adhere to these principles “[b]ecause the

Constitution’s guarantees cannot mean less today than

they did the day they were adopted. . . .”22 Thus, while

some trial practices may have changed since the founding, a historical inquiry provides important evidence

as to what “intelligible content”23 we should give to the

Sixth Amendment right to a jury.

As an initial matter, the importance of the jury

cannot be overstated. Blackstone referred to the jury

as the “sacred bulwark of the nation,”24 and he described the trial by jury as

a trial that hath been used time out of mind

in this nation, and seems to have been co-eval

with the first civil government thereof. Some

authors have endeavoured to trace the original of juries up as high as the Britons themselves, the first inhabitants of our island; but

certain it is, that they were in use among the

Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op

at 7.

Blakely, 542 US at 305 (noting “the need to give intelligible

content to the right of jury trial”); Apprendi, 530 US at 499

(Scalia, J., concurring) (“And the guarantee that ‘[i]n all criminal

prosecutions, the accused shall enjoy the right to . . . trial, by an

impartial jury,’ has no intelligible content unless it means that all

the facts which must exist in order to subject the defendant to a

legally prescribed punishment must be found by the jury.”).

People v Cain, 498 Mich 108, 129; 869 NW2d 829 (2015)

(VIVIANO, J., dissenting), quoting 4 Blackstone, Commentaries on

the Laws of England, p *350.

App. 39

earliest Saxon colonies. . . . [Its] establishment however and use, in this island, of what

date soever it be, . . . was always so highly esteemed and valued by the people, that no conquest, no change of government, could ever

prevail to abolish it.25

At the time of the founding, Alexander Hamilton noted,

“The friends and adversaries of the plan of the convention, if they agree in nothing else, concur at least in the

value they set upon the trial by jury: Or if there is any

difference between them it consists in this; the former

regard it as a valuable safeguard to liberty, the latter

represent it as the very palladium of free government.”26

More recently, the Supreme Court has referred to the

right to trial by jury “ ‘as the great bulwark of [our] civil

and political liberties,’ ” intended “ ‘[t]o guard against a

spirit of oppression and tyranny on the part of rulers. . . .’ ”27

3 Blackstone, Commentaries on the Laws of England, pp

**349-350.

The Federalist No. 83 (Hamilton) (Hamilton ed, 1864), p

614. Or as Thomas Jefferson asserted, “I consider [trial by jury]

as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” 3 Washington, The Writings of Thomas Jefferson (New York: Derby &

Jackson, 1859), p 71.

Apprendi, 530 US at 466, quoting 2 Story, Commentaries

on the Constitution of the United States (4th ed), pp 540-541. See

also Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 5

(“Together with the right to vote, those who wrote our Constitution considered the right to trial by jury ‘the heart and lungs, the

mainspring and the center wheel’ of our liberties, without which

‘the body must die; the watch must run down; the government must

become arbitrary.’ ”) (citation omitted); Sullivan v Louisiana, 508

App. 40

The role of juries in sentencing has evolved over

time, such that modern sentencing is very different

than it was at the time of the founding. Unlike modern

juries, colonial juries played a role in sentencing. This

was because several crimes were capital offenses, and

thus, a guilty verdict necessarily dictated the punishment.28 Consequently, practically, a judge often had no

discretion in sentencing:

US 275, 281; 113 S Ct 2078; 124 L Ed 2d 182 (1993) (describing

trial by jury as a “ ‘basic protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial cannot reliably

serve its function”), quoting Rose v Clark, 478 US 570, 577; 106

S Ct 3101; 92 L Ed 2d 460 (1986) (alteration in original); Amar,

The Bill of Rights: Creation and Reconstruction (New Haven: Yale

University Press, 1998), p 96 (“If we seek a paradigmatic image

underlying the original Bill of Rights, we cannot go far wrong in

picking the jury.”).

Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St L J 935, 939 (2010)

(“While scholars disagree about the details, it is reasonable to conclude that the colonial jury was a de facto and, to a degree, a de

jure sentencer. It was a de facto sentencer because of the nature

of the criminal law, on the one hand, and the process by which it

was selected, on the other. Many crimes were capital offenses.

The result was necessarily binary and easy to understand—guilt

and death or not guilty and freedom. Scalable punishments, punishments involving a term of years, were not common until the

end of the eighteenth century with the growth of penitentiaries.”);

Spooner, An Essay on the Trial by Jury (Boston: Bela Marsh,

1852), p 97 (“[T]he principle of Magna Carta, that a man should

be sentenced only by his peers, was in force, and acted upon as

law, in England, so lately as 1725, (five hundred years after

Magna Carta,). . . .”). See also Williams v New York, 337 US 241,

247-248; 69 S Ct 1079; 93 L Ed 1337 (1949) (“Undoubtedly the

New York statutes emphasize a prevalent modern philosophy of

penology that the punishment should fit the offender and not

merely the crime. The belief no longer prevails that every offense

App. 41

[W]ith respect to the criminal law of felonious

conduct, “the English trial judge of the later

eighteenth century had very little explicit discretion in sentencing. The substantive criminal law tended to be sanction-specific; it

prescribed a particular sentence for each offense. The judge was meant simply to impose

that sentence (unless he thought in the circumstances that the sentence was so inappropriate that he should invoke the pardon

process to commute it).” As Blackstone, among

many others, has made clear, “[t]he judgment,

though pronounced or awarded by the judges,

is not their determination or sentence, but the

determination and sentence of the law.”29

However, on the rare occasions when a penalty was not

set by law, judges had discretion to take into account a

wide variety of factors in sentencing.30

in a like legal category calls for an identical punishment without

regard to the past life and habits of a particular offender. This

whole country has traveled far from the period in which the death

sentence was an automatic and commonplace result of convictions—even for offenses today deemed trivial.”) (citation omitted).

Apprendi, 530 US at 479-480 (citation omitted).

Williams, 337 US at 246 (“[B]oth before and since the

American colonies became a nation, courts . . . practiced a policy

under which a sentencing judge could exercise a wide discretion

in the sources and types of evidence used to assist him in determining the kind and extent of punishment to be imposed within

limits fixed by law.”); Apprendi, 530 US at 481 (“We have often

noted that judges in this country have long exercised discretion of

this nature in imposing sentence within statutory limits in the

individual case.”) (emphasis omitted).

App. 42

Though I am aware of no source or scholarship

specifically addressing whether judges could consider

acquitted conduct at sentencing, it is true that the

Supreme Court “has repeatedly sought to guard the

historic role of the jury. . . .”31 But disregarding an acquittal at sentencing “trivializes ‘legal guilt’ or legal innocence.”32 Unlike uncharged conduct, which the jury

has only not “authorize[d],” consideration of acquitted

conduct entails consideration of “facts of which the jury

expressly disapproved.”33 In a related context, Justice

Neil Gorsuch explained the impact of similar Sixth

Amendment violations: “Nor did the absence of a jury’s

finding beyond a reasonable doubt only infringe the

rights of the accused; it also divested the ‘ “people at

large” ’—the men and women who make up a jury of a

defendant’s peers—of their constitutional authority to

set the metes and bounds of judicially administered

Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op

at 21.

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

2005); United States v Ibanga, 454 F Supp 2d 532, 541 (E D Va,

2006), sentence vacated and case remanded, 271 F Appx 298 (CA

4, 2008) (“A sentence that repudiates the jury’s verdict undermines the juror’s role as both a pupil and participant in civic affairs. The juror as pupil learns that the law does not value the

results of his or her participation in the judicial process and may

reject it at will. The disparity in the sentencing ranges with and

without the inclusion of acquitted conduct effectively ‘[drives] a

wedge between the community’s sense of appropriate punishment

and the criminal sanction inflicted.’ ”) (citation omitted).

Pimental, 367 F Supp 2d at 152.

App. 43

criminal punishments.”34 And the “people at large” perceive the slight. As one frustrated juror wrote:

It seems to me a tragedy that one is asked

to serve on a jury, serves, but then finds their

work may not be given the credit it deserves.

We, the jury, all took our charge seriously. We

virtually gave up our private lives to devote

our time to the cause of justice, and it is a very

noble cause as you know, sir. We looked across

the table at one another in respect and in sympathy. We listened, we thought, we argued,

we got mad and left the room, we broke, we

rested that charge until tomorrow, we went

on. Eventually, through every hour-long tape

of a single drug sale, hundreds of pages of

transcripts, ballistics evidence, and photos, we

delivered to you our verdicts.

What does it say to our contribution as jurors when we see our verdicts, in my personal

view, not given their proper weight. It appears

to me that these defendants are being sentenced not on the charges for which they have

been found guilty but on the charges for which

the District Attorney’s office would have liked

them to have been found guilty. Had they

shown us hard evidence, that might have been

the outcome, but that was not the case. That

at 11.

Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op

App. 44

is how you instructed your jury in this case to

perform and for good reason.35

How can the jury continue to be “ ‘the

great bulwark of [our] civil and political liberties’ ”36 when an acquittal means only that a

defendant will not formally be sentenced for

the crime but may, in reality, spend far longer

in prison because a judge finds by a preponderance of the evidence that the defendant, in

fact, committed the crime of which he or she

was acquitted by the jury?37 Consideration of

United States v Canania, 532 F3d 764, 778 n 4 (CA 8, 2008)

(Bright, J., concurring) (quotation marks omitted).

Apprendi, 530 US at 477 (citation omitted).

It is worth noting that, although the federal circuits have

yet to agree, see note 12 of this opinion, several judges and commentators have expressed their vigorous opposition to the consideration of acquitted conduct at sentencing on Sixth Amendment

grounds. See, e.g., Pimental, 367 F Supp 2d at 152-153 (opinion

of Gertner, J.) (“[W]hen a court considers acquitted conduct it is

expressly considering facts that the jury verdict not only failed to

authorize; it considers facts of which the jury expressly disapproved. . . . To tout the importance of the jury in deciding facts,

even traditional sentencing facts, and then to ignore the fruits of

its efforts makes no sense—as a matter of law or logic.”); Ibanga,

454 F Supp 2d at 536 (opinion of Kelley, J.) (“Sentencing a defendant to time in prison for a crime that the jury found he did not

commit is a Kafka-esque result.”); United States v Faust, 456 F3d

1342, 1350 (CA 11, 2006) (Barkett, J., concurring) (“Even though

[the defendant]’s maximum possible sentence was not increased

by the sentencing judge’s independent findings—three separate

findings of actual, criminal conduct—they certainly do change the

quantity and quality of the stigma he faces. . . . [E]ven more importantly, “to consider acquitted conduct trivializes ‘legal guilt’ or

‘legal innocence’. . . .”); United States v White, 551 F3d 381, 392

(CA 6, 2008) (Merritt, J., dissenting) (“[T]he use of acquitted conduct

at sentencing defies the Constitution, our common law heritage,

App. 45

acquitted conduct at sentencing diminishes

the historical role of the jury.

JURY NULLIFICATION

Another historical consideration also supports

this conclusion. Juries have historically protected defendants from prosecutorial overreach. “The Framers

envisioned the Sixth Amendment as a protection for

defendants from the power of the Government.”38 As

the Sentencing Reform Act, and common sense.”); Canania, 532

F3d at 777 (Bright, J., concurring) (“[T]he unfairness perpetuated

by the use of ‘acquitted conduct’ at sentencing in federal district

courts is uniquely malevolent.”); United States v Bell, 420 US App

DC 387, 389; 808 F3d 926 (2015) (Kavanaugh, J., concurring) (“Allowing judges to rely on acquitted or uncharged conduct to impose

higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.

If you have a right to have a jury find beyond a reasonable doubt

the facts that make you guilty, and if you otherwise would receive,

for example, a five-year sentence, why don’t you have a right to

have a jury find beyond a reasonable doubt the facts that increase

that five-year sentence to, say, a 20-year sentence?”); United

States v Bagcho, ___ US App DC ___, ___; 923 F3d 1131, 1141

(2019) (Millett, J., concurring) (“It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant

did not commit.”); Outlaw, Giving an Acquittal Its Due: Why a

Quartet of Sixth Amendment Cases Means the End of United

States v. Watts and Acquitted Conduct Sentencing, 5 U Denv Crim

L Rev 189, 190 (2015); Yalinçak, Critical Analysis of Acquitted

Conduct Sentencing in the U.S.: “Kafka-Esque,” “Repugnant,”

“Uniquely Malevolent” and “Pernicious”?, 54 Santa Clara L Rev

675, 721 (2014); Ngov, Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing, 76 Tenn L Rev 235 (2009).

Alleyne, 570 US at 124 (Roberts, C.J., dissenting); see also

Blakely, 542 US at 308 (“[T]he Sixth Amendment by its terms is

App. 46

Chief Justice John Roberts stated: “The question here

is about the power of judges, not juries. . . . [T]he historical understanding of the jury right [is] as a defense

from judges, not a defense of judges. See Apprendi, [530

US at 498 (Scalia, J., concurring)] (‘Judges, it is sometimes necessary to remind ourselves, are part of the

State’).”39

Key to their role as “[p]opulist [p]rotectors,”40 juries found both the facts and the law.41 Chief Justice

not a limitation on judicial power, but a reservation of jury power.

It limits judicial power only to the extent that the claimed judicial

power infringes on the province of the jury.”).

Alleyne, 570 US at 129-130 (Roberts, C.J., dissenting).

The Bill of Rights: Creation and Reconstruction, p 83.

Amar, The Bill of Rights as a Constitution, 100 Yale L J

1131, 1193 (1991) (“[I]t was widely believed in late eighteenthcentury America that the jury, when rendering a general verdict,

could take upon itself the right to decide both law and fact.”);

Smith, The Historical and Constitutional Contexts of Jury Reform, 25 Hofstra L Rev 377, 446-448 (1996) (“In contrast to the

traditional English jury, American juries were often granted the

authority to resolve issues of law as well as issues of fact. This

authority was recognized in constitutions, statutes, and judicial

decisions following the Revolution. Furthermore, it was emphasized in a variety of celebrated eighteenth century cases involving

political crimes during English rule of the colonies.”); Warshawsky,

Opposing Jury Nullification: Law, Policy, and Prosecutorial Strategy, 85 Geo L J 191, 198 (1996) (“Although criminal juries in England . . . possessed the raw power to ignore the law as given by

the judge, they never acquired the legal right to do so. In America,

by contrast, the right of the jury independently to decide questions of law was widely recognized until well into the nineteenth

century.”); Kemmitt, Function Over Form: Reviving the Criminal

Jury’s Historical Role as a Sentencing Body, 40 U Mich J L Reform 93, 95 (2006) (“The version of the jury adopted by the Founders largely mirrored the English archetype, but included a few

App. 47

John Jay, in Georgia v Brailsford,42 summarized the

jury’s power:

It may not be amiss, here, gentlemen, to

remind you of the good old rule, that on questions of fact, it is the province of the jury, on

questions of law, it is the province of the court,

to decide. But it must be observed, that by the

same law, which recognizes this reasonable

distribution of jurisdiction, you have, nevertheless, a right to take upon yourselves to

judge of both, and to determine the law as well

as the fact in controversy.

An important way in which a jury might decide the law

was by jury nullification. Jury nullification is “[a] jury’s

knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to

send a message about some social issue that is larger

than the case itself or because the result dictated by

law is contrary to the jury’s sense of justice, morality, or

fairness.”43 Juries used jury nullification to ameliorate

the effects of what they perceived to be unjust laws:

structural modifications. While the division of labor between

judge and jury remained the same, the American version added

the general verdict and endowed jurors with law-finding powers. . . . The adoption of a hybrid jury—one concerned with both

fact-finding and sentencing—reflected the Founders’ vision that

the jury should serve as a bulwark against government oppression and a check against an unresponsive central government.”).

Georgia v Brailsford, 3 US (3 Dall) 1, 4; 1 L Ed 483 (1794).

Black’s Law Dictionary (11th ed); see also People v Demers,

195 Mich App 205, 206; 489 NW2d 173 (1992) (“Jury nullification

App. 48

The potential or inevitable severity of sentences

was indirectly checked by juries’ assertions of a

mitigating power when the circumstances of a

prosecution pointed to political abuse of the

criminal process or endowed a criminal conviction with particularly sanguinary consequences. This power to thwart Parliament and

Crown took the form not only of flat-out acquittals in the face of guilt but of what today

we would call verdicts of guilty to lesser included offenses, manifestations of what

Blackstone described as “pious perjury” on the

jurors’ part.44

The power of jury nullification was held in high esteem

at the time of the founding—Benjamin Franklin, John

Adams, and Thomas Jefferson all spoke of jury nullification with approbation.45 The Founders took steps to

is the power to dispense mercy by nullifying the law and returning a verdict less than that required by the evidence.”).

Jury nullification is sometimes also referred to as jury mitigation. See Function Over Form, 40 U Mich J L Reform at 100

(“Jurors were unashamed of using their powers of mitigation

and frequently returned partial verdicts with a less serious

charge. . . .”).

Nathaniel Jones v United States, 526 US 227, 245; 119 S

Ct 1215; 143 L Ed 2d 311 (1999). See also Apprendi, 530 US at

480 n 5 (“[J]uries devised extralegal ways of avoiding a guilty verdict, at least of the more severe form of the offense alleged, if the

punishment associated with the offense seemed to them disproportionate to the seriousness of the conduct of the particular defendant.”).

Parmenter, Nullifying the Jury: “The Judicial Oligarchy”

Declares War on Jury Nullification, 46 Washburn L J 379, 428

n 56 (2007) (“John Adams argued, ‘It is not only [the juror’s] right,

but his duty . . . to find the verdict according to his own best

App. 49

further insulate American juries and ensure that they

could practice jury nullification:

[W]hen creating their own legal institutions,

the colonists endorsed the roles played by

the English jury—namely, mitigator of unduly

harsh sentences and populist check on a potentially unresponsive central government—

but cast aside its inelegant form. In so doing,

the colonists helped to insulate the process of

jury-based mitigation from criticism. In England, the blatant manipulation of facts by

criminal juries led critics to target the jury’s

function as mitigator. But in the United

States, such tensions were minimized through

reliance on the general verdict and by granting the jury the power to determine the law.46

understanding, judgment, and conscience, though in direct opposition to the direction of the court.’ Benjamin Franklin’s Pennsylvania Gazette commented that if jury nullification is not the law,

‘it is better than law, it ought to be law, and will always be law

wherever justice prevails.’ Thomas Jefferson remarked, ‘Were I

called upon to decide whether the people had best be omitted in

the Legislative or Judiciary department, I would say it is better

to leave them out of the Legislative. The execution of the laws is

more important than the making [of ] them.’ ”) (citations omitted;

alterations in original).

Function Over Form, 40 U Mich J L Reform at 103; see also

Barkow, Recharging the Jury: The Criminal Jury’s Constitutional

Role in an Era of Mandatory Sentencing, 152 U Penn L Rev 33,

36 (2003) (“This power to mitigate or nullify the law in an individual case is no accident. It is part of the constitutional design—

and has remained part of that design since the Nation’s founding.”).

App. 50

Understandably, there has been considerable debate about whether jury nullification is desirable.47 Indeed, courts have consistently held that defendants are

not entitled to a jury instruction regarding nullification.48 This Court stated in People v Bailey,49 “The jury

‘has the power to acquit on bad grounds, because the

government is not allowed to appeal from an acquittal

by a jury. But jury nullification [like the jury’s ability

to convict a defendant of a lesser crime than the evidence proves] is just a power, not also a right. . . .’ ”50

Yet, though it is only a power, it is a well-established

power that this Court has consistently recognized—

”Juries are not held to any rules of logic nor are they

required to explain their decisions. The ability to convict or acquit another individual of a crime is a grave

responsibility and an awesome power. An element of

Compare McKnight, Jury Nullification as a Tool to Balance the Demands of Law and Justice, 2013 BYU L Rev 1103,

1110 (2013), and Opposing Jury Nullification, 85 Geo L J 191.

See, e.g., Sparf v United States, 156 US 51, 99; 15 S Ct 273;

39 L Ed 343 (1895); United States v Krzyske, 836 F2d 1013, 1021

(CA 6, 1988) (“The right of a jury, as a buffer between the accused

and the state, to reach a verdict despite what may seem clear law

must be kept distinct from the court’s duty to uphold the law and

to apply it impartially. . . . To have given an instruction on nullification would have undermined the impartial determination of

justice based on law.”); Demers, 195 Mich App at 208.

People v Bailey, 451 Mich 657; 549 NW2d 325 (1996),

amended on denial of reh’g 453 Mich 1204 (1996).

Id. at 671 n 10, quoting United States v Kerley, 838 F2d

932, 938 (CA 7, 1988) (alterations in original). See also People v

Ward, 381 Mich 624, 628; 166 NW2d 451 (1969) (“A jury may have

the power but it has no right to disregard the court’s instructions.”).

App. 51

this power is the jury’s capacity for leniency.”51 Regardless of whether jury nullification is good policy, or

whether there is a right to jury nullification, the fact

remains that juries at the time of the founding and at

present have the power to exercise jury nullification.

But this power is rendered nearly meaningless if

consideration of acquitted conduct is permissible. If a

jury finds a defendant guilty of a lesser offense and acquits him or her of a greater offense, such jury nullification loses nearly all practical effect if the judge can

consider the acquitted conduct at sentencing. As Judge

Gilbert Merritt explained:

Allowing the use of acquitted conduct at

sentencing also eviscerates the jury’s longstanding power of mitigation, a close relative

of the power of jury nullification. . . . A jury

cannot mitigate the harshness of a sentence it

deems excessive if a sentencing judge may use

acquitted conduct to sentence the defendant

People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980);

Hamilton v People, 29 Mich 173, 189-190 (1874) (“It is true that

juries in criminal cases cannot properly find a conviction against

their consciences. It is also true that they cannot be questioned or

held responsible upon their verdict, nor called on to explain its

reasons. Whether those reasons are based on a doubt or disbelief

of evidence, or on a rejection of the exposition of law given by the

court, they are equally beyond review.”). See also United States v

Dougherty, 154 US App DC 76, 473 F2d 1113 (1972) (“The pages

of history shine on instances of the jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of the

judge.”).

App. 52

as though he had been convicted of the more

severe offense.52

Instead of acquitting a defendant of certain offenses

and convicting of others, a jury would have to exercise

jury nullification by the more extreme path of acquitting the defendant on all counts. Consideration of acquitted conduct at sentencing appears to conflict with

the Founders’ views on jury nullification, given that it

would severely limit that check on the government’s

power.

C. DISTINGUISHING OFFENSE

ELEMENTS FROM SENTENCING FACTORS

I also believe that the consideration of acquitted

conduct at sentencing leads to anomalous results.53

Specifically, it involves relabeling a particular fact

from an element of a crime at the trial stage, which the

jury must find beyond a reasonable doubt, to a mere

“sentencing factor” at the sentencing stage, which the

judge can find by a preponderance of the evidence. In

McMillan v Pennsylvania,54 the Supreme Court distinguished for the first time between an element of an offense and “a sentencing factor that comes into play

only after the defendant has been found guilty . . .

White, 551 F3d at 394 (Merritt, J., dissenting).

Faust, 456 F3d at 1351 (Barkett, J., concurring) (“The majority believes that, in a single proceeding, Faust’s possession of

ecstacy [sic] may be both an element of a crime and a sentencing

fact provable by a mere preponderance of the evidence. This

anomaly is hardly justified. . . .”).

McMillan, 477 US at 86.

App. 53

beyond a reasonable doubt.” “Much turns on the determination that a fact is an element of an offense rather

than a sentencing consideration, given that elements

must be charged in the indictment, submitted to a jury,

and proven by the Government beyond a reasonable

doubt.”55 And, as we have noted, “The failure to have

the jury find an element establishing ‘a distinct and

aggravated crime,’ not the resulting sentence, is the

constitutional deficiency[.]”56

The United States Supreme Court has provided

guidance on several occasions regarding how to distinguish between a sentencing factor and an element. The

Supreme Court has looked to a variety of factors, including tradition, statutory structure, common practice, the risk of unfairness if a fact were to be decided

by a jury, legislative history, and the effect the fact

would have on the sentence. For example, in Nathaniel

Jones v United States,57 the question was whether serious bodily injury was an element defining an aggravated form of the underlying crime or a sentencing

factor. The Court considered the structure of the statute as well as other provisions, reasoning that Congress likely did not intend for “serious bodily injury” to

be an element in certain offenses but only a sentencing

Nathaniel Jones, 526 US at 232. See also Apprendi, 530

US at 500 (“[I]n order for a jury trial of a crime to be proper, all

elements of the crime must be proved to the jury (and . . . proved

beyond a reasonable doubt). Thus, it is critical to know which

facts are elements.”) (citations omitted).

Lockridge, 498 Mich at 384 (citations omitted).

Nathaniel Jones, 526 US 227.

App. 54

factor in the offense in the case at hand.58 The Court

also looked to similar state statutes, which used “serious bodily injury” as an element of an offense rather

than as a sentencing factor.59 Thus, the Court held that

serious bodily injury was an element.60 Similarly, in

Castillo v United States,61 the Court turned to the statutory structure, tradition, the risk of unfairness if decided by a jury, legislative history, and the effects that

the factual finding would have on the sentence. Notably, as for tradition, Castillo noted that “[t]raditional

sentencing factors often involve either characteristics

of the offender, such as recidivism, or special features

of the manner in which a basic crime was carried out

(e.g., that the defendant abused a position of trust or

brandished a gun).”62

Id. at 236.

Id. at 236-237.

Id. at 239, 251-252.

Castillo v United States, 530 US 120; 120 S Ct 290; 147 L

Ed 2d 94 (2000).

Id. at 126. See also Almendarez-Torres v United States,

523 US 224, 228; 118 S Ct 1219; 140 L Ed 2d 350 (1998) (“We

therefore look to the statute before us and ask what Congress intended. Did it intend the factor that the statute mentions, the

prior aggravated felony conviction, to help define a separate

crime? Or did it intend the presence of an earlier conviction as a

sentencing factor, a factor that a sentencing court might use to

increase punishment? In answering this question, we look to the

statute’s language, structure, subject matter, context, and history—factors that typically help courts determine a statute’s objectives and thereby illuminate its text.”).

App. 55

The Court further refined the definition of an element in Apprendi v New Jersey63 and Alleyne v United

States.64 In Apprendi, the Supreme Court noted the

link between an element of the crime and punishment:

“Other 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.”65 In Alleyne, the

Supreme Court extended Apprendi’s holding to judgefound facts that increased the mandatory minimum,

not just the maximum as Apprendi had held—“a fact

increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.”66 But

Alleyne noted that it did not restrict fact-finding

Apprendi, 530 US 466.

Alleyne, 570 US 99.

Apprendi, 530 US at 490. See also Nathaniel Jones, 526

US at 252 (Stevens, J. concurring) (“[I]t is unconstitutional for a

legislature to remove from the jury the assessment of facts that

increase the prescribed range of penalties to which a criminal

defendant is exposed.”); id. at 253 (Scalia, J., concurring) (“I set

forth as my considered view, that it is unconstitutional to remove

from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which a criminal defendant

is exposed.”); Apprendi, 530 US at 503 (Thomas, J., concurring)

(determining that the value of stolen property “was an element

[of larceny] because punishment varied with value”); Blakely, 542

US at 304 (“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,’ Bishop, supra,

§ 87, at 55, and the judge exceeds his proper authority.”).

Alleyne, 570 US at 112. See also Apprendi, 530 US at 501

(Thomas, J., concurring) (“This authority establishes that a

‘crime’ includes every fact that is by law a basis for imposing or

increasing punishment. . . .”).

App. 56

necessary to exercising discretion in setting a sentence

within legal limits; it only required that facts that increase the penalty be submitted to a jury—“Any fact

that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found

beyond a reasonable doubt.”67

At the trial stage, each charged crime consists of

its requisite elements. These elements must be found

by a jury beyond a reasonable doubt.68 But, when acquitted conduct is considered, the rug is pulled out

from under a defendant at the sentencing stage. The

defendant then discovers that the elements that the

jury found were not established beyond a reasonable

doubt are still going to be considered against him or

her; they are suddenly no longer elements but now reappear as sentencing factors.69

In other words, if the prosecutor fails to establish

a fact as an element at trial, the prosecutor gets a second bite at the apple: if the prosecutor can establish

the fact by a preponderance of the evidence, then the

fact can still dramatically affect the defendant’s sentence. Take, for example, the instant case—though

Alleyne, 570 US at 103.

Nathaniel Jones, 526 US at 232.

I note that the Supreme Court has rejected attempts to

evade the Sixth Amendment by merely changing a label. Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 12 (“Our

precedents, Apprendi, Blakely, and Alleyne included, have repeatedly rejected efforts to dodge the demands of the Fifth and Sixth

Amendments by the simple expedient of relabeling a criminal

prosecution a ‘sentencing enhancement.’ ”).

App. 57

defendant was acquitted of open murder, the judge

found by a preponderance of the evidence at sentencing that defendant had killed the victim, i.e., had committed the homicide. And on that basis, the trial court

sentenced him to 240 to 400 months in prison, i.e., a

minimum sentence more than three times greater

than the upper limit of his guidelines minimum sentence range of 76 months.

But treating a finding that defendant killed the

victim as a sentencing factor is counterintuitive. Applying the analysis from Nathaniel Jones and Castillo,

it cannot seriously be contended that killing the victim,

i.e., causing the victim’s death, would be a mere sentencing factor. Unsurprisingly, tradition70 and common

practice71 indicate that causing the death of the victim

Blackstone defined manslaughter as “the unlawful killing

of another without malice, either express or implied; which may

be either voluntarily, upon a sudden heat, or involuntarily, but in

the commission of some unlawful act,” and murder as “ ‘when a

person of sound memory and discretion unlawfully killeth any

reasonable creature in being, and under the king’s peace, with

malice aforethought, either express or implied.’ ” 4 Blackstone,

Commentaries on the Laws of England, pp **191, 195 (citation

omitted).

Many states have adopted the Model Penal Code in whole

or in part. Under the Model Penal Code, criminal homicide—

which can constitute murder, manslaughter, and negligent homicide depending on a defendant’s mens rea—occurs when a person

“causes the death of another human being,” i.e., kills another human being. Model Penal Code, § 210.1 (2018); Merriam-Webster’s

Collegiate Dictionary (11th ed) (defining “kill,” in relevant part,

as to “cause the death of ”). Also, our Legislature and Supreme

Court have deemed killing an element of any of the forms of murder or manslaughter for which defendant could have been convicted. MCL 750.316 (defining first-degree murder); People v

App. 58

is an element of a crime. And as is evidenced by the

fact that the jury was already tasked with deciding

whether defendant had committed open murder, it

does not risk unfairness to have a jury decide whether

the defendant killed the victim. All these considerations support the rather uncontroversial notion that

killing the victim is an element of a crime rather than

a mere sentencing factor. The important distinction

that the United States Supreme Court has identified

between offense elements and sentencing factors is

much ado about nothing if a prosecutor can convert an

offense element (requiring proof beyond a reasonable

doubt) to a sentencing factor (requiring proof by a preponderance of the evidence), resulting in a sentence

similar to the one the defendant would have received

if he or she had been convicted of the greater crime.72

This, too, counsels against consideration of acquitted

conduct at sentencing.

Mendoza, 468 Mich 527, 534; 664 NW2d 685 (2003) (defining second-degree murder under MCL 750.317 as including, in relevant

part, “(1) death, (2) caused by defendant’s act”); id. at 535 (defining

voluntary manslaughter, in relevant part, as “ ‘[t]he act of killing’ ”) (citation omitted); id. at 536 (defining involuntary manslaughter to include “killing”).

This is contrary to the statement that “[m]uch turns on the

determination that a fact is an element of an offense rather than

a sentencing consideration. . . .” Nathaniel Jones, 526 US at 232.

App. 59

D. DIFFERENT BURDENS OF PROOF DO NOT

RENDER CONSIDERATION OF ACQUITTED

CONDUCT COMPATIBLE WITH AN ACQUITTAL

Proponents of the use of acquitted conduct argue

that a judicial finding of guilt is not necessarily incompatible with a jury acquittal because different burdens

of proof are involved in each determination. In other

words, the proponents argue that acquittals are not

proclamations of innocence but only findings that there

was not proof of guilt beyond a reasonable doubt.73

I find this argument unpersuasive. First, while an

acquittal might mean that a jury was convinced by a

preponderance of the evidence but not beyond a reasonable doubt, that is not certain; it is also possible

that a jury acquitted believing that the evidence

did not meet even the lower preponderance-of-theevidence standard.74 The prosecutor should not receive

See, e.g., post at 3-4 (“To the extent that the majority’s position implies that a sentencing court’s consideration of conduct

underlying an acquitted charge directly contradicts a jury’s acquittal decision, there is no logical anomaly in the trial court making a factual finding that may have been rejected by the jury at

trial. An acquittal means only that the jury held a reasonable

doubt as to the defendant’s guilt of that crime, not that the underlying conduct did not occur.”); Watts, 519 US at 156-157.

Doerr, Not Guilty? Go to Jail. The Unconstitutionality of

Acquitted-Conduct Sentencing, 41 Colum Hum Rts L Rev 235, 261262 (2009) (“Allowing a judge to enhance a defendant’s sentence

because the jury ‘has not said that the defendant is innocent, either’ eviscerates the policy and purpose of the Sixth Amendment

jury-trial guarantee, especially because an acquittal is the only

action a jury can take to absolve a defendant of guilt. . . . The

proper solution to this problem is not to ignore the fact that a

App. 60

the benefit of this ambiguity. Second, the logic that

there might be evidence beyond a preponderance but

not beyond a reasonable doubt skirts the issue. As

Judge Patricia Millett explained:

The problem with relying on that distinction

in this setting is that the whole reason the

Constitution imposes that strict beyond-areasonable-doubt standard is that it would be

constitutionally intolerable, amounting “to a

lack of fundamental fairness,” for an individual to be convicted and then “imprisoned for

years on the strength of the same evidence as

would suffice in a civil case.” In re Winship,

[397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d

368 (1970)]. In other words, proof beyond a

reasonable doubt is what we demand from the

government as an indispensable precondition

to depriving an individual of liberty for the alleged conduct. Constructing a regime in which

the judge deprives the defendant of liberty on

the basis of the very same factual allegations

that the jury specifically found did not meet

our constitutional standard for a deprivation

of liberty puts the guilt and sentencing halves

of a criminal case at war with each other.75

For this reason, finding elements of a crime only by a

preponderance of the evidence is unconstitutional,

even if there is a possibility that it is logically consistent with an acquittal.

jury’s verdict of acquittal is ambiguous and punish the defendant

by interpreting that verdict as ‘maybe innocent.’ ”).

Bell, 420 US App DC at 391 (Millett, J., concurring).

App. 61

Moreover, it is important to keep in mind the practical reality of sentencing. According to the Supreme

Court, “The dispositive question . . . ‘is one not of form,

but of effect.’ ”76 The reality is that when judges find by

a preponderance of the evidence that a defendant committed the conduct for which he was acquitted, that defendant can, and often does, serve a longer prison

sentence because of it.77 But this seems counterintuitive—“In effect, juries rule on ‘legal guilt, guilt determined by the highest standard of proof we know,

beyond a reasonable doubt. And when a jury acquit[s]

a defendant based on that standard, one would have

expected no additional criminal punishment would

follow.’ ”78 In addition to a longer sentence, the defendant will also face additional stigma.79 Regardless of

Ring v Arizona, 536 US 584, 602; 122 S Ct 2428; 153 L Ed

2d 556 (2002), quoting Apprendi, 530 US at 494.

Bell, 420 US App DC at 392 (Millett, J., concurring) (“The

other explanation commonly proffered is that, as long as the final

sentence does not exceed the statutorily authorized maximum

length of incarceration for the offense of conviction, the defendant

is only being sentenced for the crime he committed. That blinks

reality when, as here, the sentence imposed so far exceeds the

Guidelines range warranted for the crime of conviction itself that

the sentence would likely be substantively unreasonable unless

the acquitted conduct is punished too.”).

Pimental, 367 F Supp 2d at 150 (alteration in original).

Faust, 456 F3d at 1350-1351 (Barkett, J., concurring)

(“[T]the reasonable doubt standard is warranted when imputations of criminal conduct are at stake not only ‘because of the possibility that [an individual] may lose his liberty upon conviction,’

but also ‘because of the certainty that he would be stigmatized. . . .’

Even though Faust’s maximum possible sentence was not increased by the sentencing judge’s independent findings—three

separate findings of actual, criminal conduct—they certainly do

App. 62

whether an acquittal and consideration of acquitted

conduct are logically inconsistent, the practical reality

of sentencing calls into question the constitutionality

of relying on acquitted conduct.

III.

CONCLUSION

Although I agree with the majority that due process precludes consideration of acquitted conduct at

sentencing under a preponderance-of-the-evidence standard, I believe it important to point out that defendant’s

sentence also violates the Sixth Amendment because it

would not be reasonable but for the judge-found fact

that defendant committed the conduct for which he

was acquitted. Finally, for the above reasons, I have serious concerns regarding whether the consideration of

acquitted conduct can ever comply with the Sixth

Amendment.

David F. Viviano

change the quantity and quality of the stigma he faces.”) (citations omitted; alterations in original).

App. 63

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE

STATE OF MICHIGAN,

Plaintiff-Appellee,

No. 152934

ERIC LAMONTEE BECK,

Defendant-Appellant.

CLEMENT, J. (dissenting).

The majority concludes that the trial court violated defendant’s due-process rights during sentencing

when it found by a preponderance of the evidence that

defendant had caused a death—despite defendant’s acquittal of the charge of open murder—and, relying on

this finding, imposed a sentence above the recommended guidelines range. I dissent because I believe

that the sentencing court properly considered all “circumstance[s] which aid[ed] the sentencing court’s construction of a more complete and accurate picture of

. . . defendant’s background, history, or behavior. . . .”

People v Ewing (After Remand), 435 Mich 443, 472; 458

NW2d 880 (1990) (opinion by BOYLE, J.).

In Michigan, sentencing is “a matter for the exercise of judicial discretion [which] requires an individualized factual basis” of the defendant’s personal,

criminal, and mental history, as well as the circumstances of the crime. People v Lee, 391 Mich 618, 639;

App. 64

218 NW2d 655 (1974). See also MCL 771.14 (requiring

preparation of a presentence investigation report that

“inquire[s] into the antecedents, character, and circumstances of the [defendant]” to aid the trial court in

its sentencing determination). This individualized consideration guides the sentencing court in imposing a

sentence within the range of punishments set by the

Legislature that is proportionate to the manner in

which the particular offense was committed and to the

background of the defendant. See People v Milbourn,

435 Mich 630, 651; 461 NW2d 1 (1990) (“[T]he Legislature, in setting a range of allowable punishments for a

single felony, intended persons whose conduct is more

harmful and who have more serious prior criminal records to receive greater punishment than those whose

criminal behavior and prior record are less threatening

to society.”). Today, the majority restricts a sentencing

court’s access to information, a restriction that is not

mandated by federal or state law and that is antithetical to this state’s tradition of providing the broadest

range of information to consider at sentencing. See Lee,

391 Mich at 639. In so doing, the majority endorses an

overbroad reading of the presumption of innocence and

rejects this Court’s decision in Ewing without adequate justification.

The majority declares that the presumption of innocence prevents a trial court from considering at sentencing conduct underlying a charge for which the

defendant was acquitted. This declaration expands the

presumption of innocence beyond its function. The presumption of innocence is rooted in constitutional due

App. 65

process, and it requires that the government prove beyond a reasonable doubt every element of a criminal

offense. McMillan v Pennsylvania, 477 US 79, 85; 106

S Ct 2411; 91 L Ed 2d 67 (1986). The presumption of

innocence mandates only that a defendant cannot be

convicted and sentenced for a crime unless the elements of that crime were proved beyond a reasonable

doubt. Once the prosecutor overcomes the presumption

of innocence by obtaining a conviction, the presumption does not prevent the trial court from considering

the defendant’s relevant conduct when imposing a sentence, even if that same conduct supported an acquitted charge. The presumption does limit the trial court’s

sentencing discretion to the statutory penalties set by

the Legislature for the convicted offenses, preventing

the trial court from sentencing the defendant as if he

had been convicted for the crime of which he was acquitted. Specifically, the trial court may not impose an

additional concurrent or consecutive sentence for the

acquitted charge and may not leave the confines of the

continuum of sentences available for the convicted offenses. Accordingly, the trial court does not violate the

presumption of innocence by considering conduct underlying an acquitted charge when sentencing the defendant for convicted offenses because the defendant is

not being sentenced as if he had been convicted of the

acquitted crime; it is merely a valid consideration of

the manner in which the defendant committed the offenses for which he was convicted. See Milbourn, 435

Mich at 651.

App. 66

To the extent that the majority’s position implies

that a sentencing court’s consideration of conduct underlying an acquitted charge directly contradicts a

jury’s acquittal decision, there is no logical anomaly in

the trial court making a factual finding that may have

been rejected by the jury at trial. An acquittal means

only that the jury held a reasonable doubt as to the

defendant’s guilt of that crime,1 not that the underlying conduct did not occur.2 At sentencing, the standard

of proof is lower, requiring only that the facts considered by the trial court are supported by a preponderance of the evidence. Because of this lower standard of

As stated in Ewing (After Remand), 435 Mich at 452 (opinion by BRICKLEY, J.):

Any number of reasons not related to the defendant’s

factual guilt or innocence may be hypothesized to explain a jury’s decision to acquit. For example, a jury

may acquit a factually guilty defendant because the

prosecution was, for one reason or another, unable to

present its best evidence, as would be the case where a

strong witness died or disappeared before trial, yet sufficient evidence remained to persuade the prosecutor to

proceed to trial. To take another example, it is also

true, unfortunately, that a jury may acquit a factually

guilty defendant because of confusion with regard to

the judge’s instructions.

I have chosen to avoid referring to such conduct as “acquitted conduct” within this opinion because I believe that label is

misleading. A jury may acquit the defendant of a criminal charge,

but—absent the use of a special verdict form—the jury does not

acquit the defendant of the underlying conduct. Accordingly—and

although I acknowledge that the United States Supreme Court

has used the term “acquitted conduct” as well—I believe that it is

more precise to use the phrase “conduct underlying an acquitted

charge.”

App. 67

proof, the trial court can properly make a finding at

sentencing that may have been rejected by the jury at

trial.

Here, the trial court was statutorily empowered to

sentence defendant to any term of years up to life imprisonment for defendant’s conviction of being a felon

in possession of a firearm (felon-in-possession). Although felon-in-possession is generally punishable

by up to five years’ imprisonment, MCL 750.224f(5),

defendant’s status as a fourth-offense habitual offender, MCL 769.12(1)(b), raised his maximum potential sentence to life imprisonment. The guidelines

minimum sentence range for defendant’s felon-inpossession conviction was calculated to be 22 to 76

months’ imprisonment. But at sentencing, the trial

court found by a preponderance of the evidence that

defendant had, while committing felon-in-possession,

caused the death of Hoshea Pruitt. On the basis of this

finding regarding the manner in which defendant committed felon-in-possession, the trial court sentenced

defendant to 240 to 400 months’ imprisonment. This

sentence was within the range of permissible sentences for felon-in-possession authorized by the Legislature in MCL 750.224f(5) and MCL 769.12(1)(b).

Contrary to the majority’s position, defendant was not

sentenced as if he had been convicted of the crime of

murder, but rather as if he had been convicted of felonin-possession as a fourth-offense habitual offender

with the trial court further determining by a preponderance of the evidence that defendant had caused

a death while doing so. There is no doubt that a

App. 68

sentencing court may generally consider facts relevant

to how the defendant committed the offense, and there

is no basis in the law to distinguish this particular factual finding from all other information relevant to

the manner in which defendant committed felon-inpossession.

I suspect that, in this case, the majority feels like

defendant is being sentenced for an offense he was acquitted of committing because the offense for which defendant was convicted has the same maximum penalty

as the offense for which defendant was acquitted. The

fact that MCL 769.12(1)(b) increases defendant’s available maximum punishment for felon-in-possession to

life imprisonment—the same maximum punishment

available for murder—may make it seem like defendant is being sentenced for an offense for which he was

acquitted.3 But this is not an accurate observation.

Consider instead a situation wherein a defendant is

acquitted of murder, but convicted of second-degree

home invasion. In this scenario, the recommended

minimum sentence range for the particular defendant

is 22 to 36 months’ imprisonment. The trial court is not

bound to follow this advisory range, People v Lockridge,

498 Mich 358, 391-392; 870 NW2d 502 (2015), but it

is restricted by the statutory penalty for the convicted offense of second-degree home invasion. Seconddegree home invasion may be punished by up to 15

To the extent that some may find this troubling, the solution lies with the Legislature to narrow statutory penalties for

crimes or to alter the substantial increase of statutory penalties

in repeat-offender statutes like MCL 769.12.

App. 69

years’ imprisonment, MCL 750.110a(6), although MCL

769.34(2)(b) prohibits the trial court from imposing a

minimum sentence that exceeds two-thirds of the statutory maximum sentence—as applied here, 10 years’

imprisonment. In considering what sentence to impose

in this 15-year continuum, the trial court is not prohibited from making factual findings regarding the manner in which defendant committed home invasion,

even if those facts may have supported the acquitted

charge of murder. As long as a preponderance of the

evidence supports its conclusions, the trial court could

find that the defendant killed a person in the course of

committing home invasion and rely on this information

to impose the highest sentence possible—10 to 15 years’

imprisonment, as established by MCL 750.110a(6) and

MCL 769.34(2)(b). The presumption of innocence does

not prohibit this. The presumption of innocence only

prevents the trial court from sentencing the defendant

as if he had been convicted of murder, which carries a

maximum penalty of life imprisonment.4 As long as the

trial court imposes a sentence within the 15-year statutory maximum of second-degree home invasion whose

minimum does not violate MCL 769.34(2)(b), it is inaccurate to say that the defendant was sentenced as if he

had committed murder.

Specifically, first-degree murder “shall be punished by imprisonment in the state prison for life without eligibility for

parole,” MCL 750.316(1), and second-degree murder “shall be

punished by imprisonment in the state prison for life, or any term

of years, in the discretion of the court trying the same,” MCL

750.317.

App. 70

In sum, I disagree with the majority that the presumption of innocence prevents the trial court from

considering at sentencing conduct that supported

charges for which the defendant was acquitted.5 There

is a precise difference between sentencing a defendant

as if he had been convicted of a crime for which he was

acquitted and sentencing a defendant for a convicted

offense while considering conduct that supported the

acquitted charge, as this Court acknowledged nearly

30 years ago in Ewing. In concluding otherwise, the

majority inaccurately dismisses Ewing’s holding as

“murky at best,”6 concluding that although Justice

I would also have held that the consideration of such conduct does not violate a defendant’s Sixth Amendment rights, a

conclusion that is consistent with the decision of every federal circuit court. See, e.g., United States v Gobbi, 471 F3d 302, 314 (CA

1, 2006), abrogated in part on other grounds as stated in United

States v Nagell, 911 F3d 23, 31 n 8 (CA 1, 2018); United States v

Vaughn, 430 F3d 518, 525-527 (CA 2, 2005); United States v Hayward, 177 F Appx 214, 215 (CA 3, 2006); United States v Ashworth, 139 F Appx 525, 527 (CA 4, 2005); United States v Farias,

469 F3d 393, 399-400 (CA 5, 2006); United States v White, 551

F3d 381, 383-384 (CA 6, 2008); United States v Price, 418 F3d 771,

787-788 (CA 7, 2005); United States v High Elk, 442 F3d 622, 626

(CA 8, 2006); United States v Mercado, 474 F3d 654, 655-656 (CA

9, 2007); United States v Magallanez, 408 F3d 672, 684-685 (CA

10, 2005); United States v Duncan, 400 F3d 1297, 1304-1305 (CA

11, 2005); United States v Dorcely, 372 US App DC 170; 454 F3d

366, 371 (2006).

The majority also criticizes Ewing on the basis that this

Court has never cited it for a binding legal rule. While this is correct, I would note that the Court of Appeals has repeatedly done

so in its published decisions. See, e.g., People v Golba, 273 Mich

App 603, 614; 729 NW2d 916 (2007) (“A trial court may consider

facts concerning uncharged offenses, pending charges, and even

acquittals, provided that the defendant is afforded the opportunity

App. 71

BOYLE’s opinion provided three votes supporting the

practice of considering acquitted conduct at sentencing, Justice BRICKLEY’s lead opinion did not similarly

bless the practice.7

I disagree. In Ewing, when sentencing the defendant for first-degree criminal sexual conduct, the trial

court found that the defendant “ ‘ha[d] carried on a

course of conduct involving attacks on young women

over a periods [sic] of five years.’ ” Ewing (After Remand), 435 Mich at 466 (opinion by BOYLE, J.). In so

doing, the trial court relied on information that supported pending charges, prior convictions, and uncharged offenses against the defendant that had been

presented in the presentencing information report and

during a Golochowicz8 hearing. Id. at 465-467. Justice

to challenge the information and, if challenged, it is substantiated

by a preponderance of the evidence.”); People v Granderson, 212

Mich App 673, 679; 538 NW2d 471 (1995) (“A majority of the justices of our Supreme Court . . . subscribe to the view that a prior

acquittal, without more, is not sufficient reason to preclude the

court from taking into account the facts underlying that acquittal

at sentencing.”); People v Coulter (After Remand), 205 Mich App

453, 456; 517 NW2d 827 (1994) (“A sentencing court is allowed to

consider the facts underlying uncharged offenses, pending

charges, and acquittals.”); People v Newcomb, 190 Mich App 424,

427; 476 NW2d 749 (1991), overruled on other grounds People v

Randolph, 466 Mich 532, 586 (2002) (“A sentencing judge may

also consider the facts underlying uncharged offenses, pending

charges, and acquittals.”). And this Court has never released an

opinion or order undermining this Court’s decision in Ewing.

Justices LEVIN and CAVANAGH would not have reached the

merits of the decision; Justice ARCHER would have concluded that

conduct underlying acquitted charges could not be considered.

People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982).

App. 72

BRICKLEY, along with three other justices, agreed to remand the case to the trial court with the following instruction:

On remand, the sentencing judge should

indicate with greater specificity which facts

he relied on in imposing sentence. If the judge

determines that he relied on allegations

against the defendant which did not result in

a conviction, then the defendant must be afforded an opportunity to challenge the accuracy of those allegations. If the judge then

determines that the accuracy of those facts

has not been determined by a preponderance

of the evidence, the defendant should be resentenced. Finally, if a resentencing is ordered, the judge will be entitled to rely on

testimony containing facts underlying an acquittal which was obtained after the original

sentencing in this case, subject to the defendant’s right to dispute the accuracy of that testimony. [Id. at 446 (opinion by BRICKLEY, J.)

(emphasis added).]9

The majority relies on the fact that Justice BRICKLEY provided the fourth vote for the disposition of a remand to support

its conclusion that Justice BRICKLEY’s approach to the consideration of acquitted conduct at sentencing was not consistent with

the approach of Justices BOYLE, RILEY, and GRIFFIN (the dissenting justices who would have instead reinstated the trial court’s

sentence). This difference in disposition does not undermine the

fact that Justices BOYLE, RILEY, GRIFFIN, and BRICKLEY agreed

that consideration of conduct underlying an acquitted charge is

appropriate. The divergence between the dispositions concerned

whether the defendant in that particular case had already received sufficient opportunity to refute the information on which

App. 73

The order expressly permits the trial court to rely

on the defendant’s conduct underlying charges for

which, by the time of the resentencing, the defendant

had been acquitted. Moreover, Justice BRICKLEY “agree[d]

with Justice BOYLE and a number of federal decisions

that the mere fact of a prior acquittal of charges whose

underlying facts are properly made known to the trial

judge is not, without more, sufficient reason to preclude the judge from taking those facts into account at

sentencing.” Id. at 451. Yet, the majority asserts that

Justice BRICKLEY’s opinion is “hard[ ] to parse.” The majority specifically cites Justice BRICKLEY’s statement

that this Court was “not presented with the issue

whether a defendant may be punished for a crime for

which no conviction was obtained; this is clearly unconstitutional,” id. at 454, for support of its argument.

But the context of that statement demonstrates that

Justice BRICKLEY was not reneging on his earlier assertions supporting the consideration of conduct underlying acquitted charges at sentencing. In that portion of

the opinion, Justice BRICKLEY sought to establish that

the opinion did not hold “that the sentencing judge

may rely on the mere fact that the defendant was once

acquitted of, and therefore had necessarily been bound

over on, criminal charges.” Id. at 453. He emphasized

that the trial court in the case at hand made factual

findings based on testimony from the Golochowicz

hearing and trial rather than the fact of the charges

themselves. Id. at 453-454. He then stated that the

the trial court based its sentence, an issue with which we are not

presently faced.

App. 74

Court was “not presented with the issue whether a defendant may be punished for a crime for which no conviction was obtained”—referring to this concept of

punishment based on the fact of pending or acquitted

charges only—and immediately thereafter concluded

that sentencing courts “may, in the exercise of the

broad discretion conferred upon them in our sentencing scheme, consider relevant and reliable facts

about offenders when selecting appropriate punishment within the legislatively established range for offenses whose commission has been proven beyond a

reasonable doubt.” Id. at 454.

Justice BRICKLEY endorsed the same distinction

that I have made here: a defendant cannot be punished

as if the jury had found the defendant guilty of the

acquitted charge, but the trial court can consider the

defendant’s conduct underlying such a charge when

sentencing the defendant for convicted offenses.10

Insofar as the majority states that I “want[ ] to draw [a distinction] between sentencing a defendant more harshly based on

the conclusion that the defendant committed an offense of which

he was acquitted and sentencing a defendant ‘while considering

conduct that supported the acquitted charge,’ ” I do not. I, in fact,

agree with the majority that the trial court in this case found by

a preponderance of the evidence that defendant had committed

murder. My choice of phrase—“as if [defendant] . . . had caused a

death” rather than “as if defendant had committed murder”—is

used to emphasize that the trial court did not convict defendant

of the criminal charge of murder. The jury found defendant guilty

of felon-in-possession, and the trial court was empowered to consider conduct related to this conviction at sentencing when considering the continuum of available sentences that it could

impose. The trial court’s finding that defendant committed murder was not a finding that defendant was guilty of murder beyond

App. 75

Further, given that Justice BRICKLEY’s opinion clearly

set forth how the trial court was to consider the defendant’s conduct supporting the acquitted charges,11 it is

baffling to me how the majority can conclude that the

rule of law from Ewing is “murky at best.” Justice

BRICKLEY and Justice BOYLE, joined by Justices RILEY

and GRIFFIN, clearly supported the consideration of

conduct underlying acquitted charges at sentencing,

establishing a rule of law that this Court is bound to

follow.12 See People v Feezel, 486 Mich 184, 212; 783

a reasonable doubt but instead a finding regarding the manner in

which defendant committed felon-in-possession.

In the same section of the opinion, Justice BRICKLEY set

forth the proper procedure for the trial court’s consideration of

conduct supporting the defendant’s acquitted charges at sentencing:

As noted above, . . . on remand the defendant should be

able to test the accuracy of th[e] allegations [for which

the defendant was acquitted]. . . . The defendant should

not, however, be able to preclude the judge from basing

his sentence on this testimony. Since the judge on remand will be aware that a prior jury declined to find

the defendant guilty beyond a reasonable doubt in

th[at] case . . . , he may hear argument from the parties

and decide how to view this testimony in light of the

acquittal. Moreover, because of the double jeopardy

bar, the defendant will be unlikely to feel pressure not

to effectively challenge the accuracy of the allegations

underlying what will be, in the event of resentencing,

a prior acquittal. [Ewing (After Remand), 435 Mich at

454 (opinion by BRICKLEY, J.).]

Justice BRICKLEY’s opinion also provides the key to an issue raised by the parties on appeal but left unaddressed by the

majority: how to harmonize the ruling in Ewing with this Court’s

prior ruling in People v Grimmett, 388 Mich 590; 202 NW2d 278

(1972), overruled in part on other grounds People v White, 390

App. 76

NW2d 67 (2010) (“[T]his Court should respect precedent and not overrule or modify it unless there is substantial justification for doing so.”).

Finally, I would also note that the majority has

adopted a standard that may be problematic in application: “that due process bars sentencing courts from

finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted.”

Left unexplained are the parameters of what constitutes acquitted conduct. Is acquitted conduct defined

only as the exact conclusion that the defendant committed the acquitted charge? This would certainly apply to the present case, in which the trial court

expressly found that defendant had committed murder despite his having been acquitted of the crime of

Mich 245 (1973). In Grimmett, the defendant and two others

robbed a Detroit grocery store; the robbery resulted in the death

of the grocery store’s owner and the wounding of a customer. Id.

at 594. The defendant was found guilty of assault with intent to

murder as to the customer. Id. at 596. At sentencing, the trial

court found that the defendant “ ‘is certainly the same person who

murdered the other grocer’ ”—referring to the murder charges

filed, but not yet tried, against the grocery store’s owner, id. at

608—and sentenced the defendant to life imprisonment pursuant

to that finding. Id. at 596. This Court held that the trial court had

“acted improperly in assuming defendant was guilty of the murder charge when he sentenced defendant on the assault charge”

and remanded the case to the trial court for resentencing. Id. at

608. Grimmett is not inconsistent with Ewing, and this Court

need not overrule it. Grimmett forbids the assumption of guilt

based on the fact that the defendant was charged with a crime.

The trial court’s factual findings must instead be supported by

a preponderance of the evidence—the mere fact of a charge,

whether pending or acquitted, does not meet that evidentiary

standard.

App. 77

murder. But does acquitted conduct extend beyond this

ultimate conclusion to all facts that supported a charge

for which a defendant was acquitted? Could the trial

court here have safely found that defendant possessed

a weapon and initiated a confrontation that caused

Pruitt’s death as long as it stopped short of the ultimate conclusion that defendant murdered Pruitt?

What if it is unclear why the jury acquitted the defendant of the particular crime? For example, when a defendant is acquitted of a charge of felon-in-possession,

it is possible that the jury could not find beyond a reasonable doubt that the defendant possessed a weapon

or that he was a felon or both. If there is no indication

as to which element the jury found lacking, is the sentencing court prohibited from considering the facts underlying either element?

The majority’s holding may be difficult to apply,

and it directly contradicts existing precedent.13 The

Federal circuit courts have repeatedly held that the consideration of conduct underlying an acquitted charge does not violate constitutional authority, relying on the United States

Supreme Court cases McMillan and United States v Watts, 519

US 148; 117 S Ct 633; 136 L Ed 2d 554 (1997), to support their

conclusions. See, e.g., United States v Swartz, 758 F Appx 108,

111-112 (CA 2, 2018); White, 551 F3d 381, 384-385; United States

v Horne, 474 F3d 1004, 1006 (CA 7, 2007); United States v Jamerson, 674 F Appx 696, 699 (CA 9, 2017); United States v Maddox,

803 F3d 1215, 1220-1222 (CA 11, 2015); United States v Settles,

382 US App DC 7, 10; 530 F3d 920 (2008).

In McMillan, 477 US at 85-86, the Court held that the Due

Process Clause’s requirement of proof beyond a reasonable doubt

extends only to elements identified by the state legislature as

an element of the offense and not to sentencing factors. Though

the majority is correct that McMillan did not involve conduct

App. 78

underlying an acquitted charge, its conclusion that the finding of

sentencing factors by a preponderance of the evidence does not

violate due process is certainly relevant to the issue at hand.

Also relevant is the Court’s holding in Watts, 519 US at 157,

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.” The majority relies on the Court’s statements regarding Watts in United States v Booker, 543 US 220, 240 n 4; 125 S

Ct 738; 160 L Ed 2d 621 (2005), to declare Watts unhelpful to the

issue at hand. In Booker, in which the Court was presented with

a Sixth Amendment issue, the Court reasoned that Watts was

not applicable to the Sixth Amendment issue because Watts “presented a very narrow question regarding the interaction of the

Guidelines with the Double Jeopardy Clause. . . .” Id. But Booker

did not overrule Watts and did not indicate that Watts was irrelevant to a due-process challenge. (The Watts decision not only rejected the defendants’ double-jeopardy challenge to the use of

facts underlying acquitted charges at sentencing, but also recognized the Court’s earlier holdings “that application of the preponderance standard at sentencing generally satisfies due process” in

order to conclude that a sentencing court may consider conduct

underlying acquitted charges. Watts, 519 US at 156-157.) And,

post-Booker, federal circuit courts have cited Watts in holding

that due process does not prevent the sentencing court from considering conduct underlying acquitted charges. See, e.g., Swartz,

758 F Appx at 111-112; Settles, 382 US App DC at 10.

Even if the majority is correct in its additional criticism of

McMillan and Watts, these cases have not been overruled, and

this Court is bound to follow them (although a plurality opinion

of the United States Supreme Court has recently stated that

McMillan was overruled by Alleyne v United States, 570 US 99;

133 S Ct 2151; 186 L Ed 2d 314 (2013), see United States v Haymond, 588 US ___, ___; ___ S Ct ___; ___ L Ed 2d ___ (2019)

(Docket No. 17-1672) (opinion by Gorsuch, J.); slip op at 9-10, Alleyne affected what is considered an element of a crime and what

is considered a sentencing factor; it did not undermine McMillan’s

conclusion that sentencing factors may be proven by a preponderance of the evidence). Further, even if McMillan and Watts could

App. 79

presumption of innocence does not prohibit the trial

court from considering conduct underlying acquitted

charges when sentencing a defendant for convicted offenses as long as the conduct is relevant and supported

by a preponderance of the evidence. The contrary conclusion is belied by the majority’s failure to cite any

supporting precedent for its conclusion. Accordingly, I

dissent from this Court’s reversal of the judgment of

the Court of Appeals. I would have affirmed the holding of the Court of Appeals that the trial court did not

err by considering conduct underlying defendant’s

acquitted charge but reversed insofar as the Court of

Appeals remanded this case for a Crosby14 hearing.

Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453, 460-461; 902 NW2d 327 (2017), I

would have instead remanded this case to the Court of

Appeals so that it could determine whether the trial

court abused its discretion by violating the principle of

proportionality.

Elizabeth T. Clement

Stephen J. Markman

Brian K. Zahra

be effectively distinguished from the case at hand without contradicting United States Supreme Court precedent, the majority’s

conclusion still directly contradicts this Court’s decision in Ewing.

United States v Crosby, 397 F3d 103 (CA 2, 2005).

App. 80

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE

OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

November 17, 2015

No. 321806

Saginaw Circuit Court

LC No. 13-039031-FC

ERIC LAMONTEE BECK,

Defendant-Appellant.

Before: BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of

felon in possession of a firearm, MCL 750.224f, and

possession of a firearm during the commission of a felony (felony firearm), MCL 750.227b. He was acquitted

of murder, carrying a dangerous weapon with unlawful

intent, and two felony firearm charges. The trial court

departed from the recommended sentencing range

under the now-advisory legislative guidelines and

sentenced defendant as an habitual offender, fourth offense, MCL 769.12, to 240 to 400 months’ imprisonment for the felon in possession conviction and to a

consecutive sentence of 5 years’ imprisonment for the

felony firearm conviction. Defendant appeals as of

right. We affirm defendant’s convictions. However, in

App. 81

light of People v Steanhouse, ___ Mich App, ___; ___

NW2d ___ (2015), we remand for a Crosby1 hearing.

On June 11, 2013, Hoshea Pruitt was shot to

death. Mary Loyd-Deal, a witness who died before

trial, saw the shooting and identified defendant as the

shooter in her preliminary examination testimony,

which was presented to the jury. Loyd-Deal explained

that defendant shot Pruitt after a verbal altercation

about a woman named Rajeana Drain. The shooting

was also witnessed by Jamira Calais. Although Calais

could not identify defendant, she testified that she saw

a man in a black shirt run across the street after a man

in a white shirt was shot three or four times. She saw

the man with the black shirt with a gun. The prosecution also presented testimony from Aaron Fuse, who

testified that defendant called him a couple of days after Pruitt’s death and told Fuse that he had done

“something stupid” and shot someone while arguing

about a woman.

Defendant was charged with murder, carrying a

dangerous weapon with unlawful intent, felon in possession of a firearm, and three counts of felony-firearm.

As noted, the jury convicted defendant of felon in possession of a firearm and one count of felony-firearm,

but returned a verdict of not guilty with respect to

murder, carrying a dangerous weapon with unlawful

intent, and the remaining two counts of felony-firearm.

Defendant’s recommended minimum sentencing range

under the legislative guidelines as a fourth-habitual

United States v Crosby, 397 F3d 103 (CA 2 2005).

App. 82

offender, MCL 769.12, was 22 to 76 months for felon in

possession of a firearm. The trial court departed upward from this range and sentenced defendant to 240

to 400 months’ imprisonment for felon in possession of

a firearm, which was to be served consecutively to a 5

year sentence for felony-firearm. Defendant now appeals as of right.

SENTENCING

On appeal, defendant raises several challenges regarding the sentence imposed. First, defendant contends that the trial court impermissibly engaged in

judicial fact-finding that increased the floor of his minimum sentencing range in violation of Alleyne v United

States, ___ US ___; 133 S Ct 2151; 186 L Ed 2d 314

(2013). Specifically, defendant asserts that the trial

court’s scoring of offense variables required the trial

court to find facts beyond those established by the jury.

Based on this required judicial fact-finding, defendant

claims that he is entitled to resentencing.

Defendant failed to raise this judicial fact-finding

argument regarding of [sic] the scoring of offense variables in the trial court, meaning that his Alleyne claim

is unpreserved and reviewed for plain error affecting

his substantial rights. See People v Lockridge, ___ Mich

___, ___; ___ NW2d ___ (2015), slip op at 30. Recently,

in Lockridge, the Michigan Supreme Court determined

that Michigan’s sentencing guidelines violate the Sixth

Amendment right to a jury trial insofar as they require

a sentencing judge to find facts at sentencing that

App. 83

mandatorily increase the floor of the recommended

minimum sentencing range under the legislative

guidelines. Id., slip op at 1-2. To remedy this constitutional defect, the Lockridge Court held that the sentencing guidelines are now “advisory.” Id. at 36.

However, while declaring the guidelines advisory, the

Lockridge Court specified that an unpreserved claim of

Alleyne error was subject to plain error analysis and

that, under this standard of review, a defendant who

received a minimum sentence that is an upward departure cannot show plain error “because the sentencing

court has already clearly exercised its discretion to impose a harsher sentence than allowed by the guidelines

and expressed its reasons for doing so on the record.”

Id., slip op at 30 & n 31. “It defies logic that the court

in those circumstances would impose a lesser sentence

had it been aware that the guidelines were merely advisory.” Id. Consequently, in this case, because defendant’s sentence was an upward departure, he cannot

show plain error and he is not entitled to resentencing

on the basis of judicial fact-finding regarding offense

variables. See id.

Next, with respect to sentencing, defendant also

argues that the trial court could not consider Pruitt’s

death when imposing a sentence because the jury

found defendant not guilty of homicide. Contrary to

these assertions, it is well-settled that a trial court may

consider all the evidence admitted at trial when determining the appropriate sentence. See People v Shavers,

448 Mich 389, 393; 531 NW2d 165 (1995). Indeed, a

trial court may consider even acquitted conduct during

App. 84

sentencing, provided that the facts are proven to the

judge by a preponderance of the evidence. See People v

Ewing, 435 Mich 443, 451-452; 458 NW2d 880 (1990)

(opinion by BRICKLEY, J.); id. at 473 (opinion by BOYLE,

J.); People v Compagnari, 233 Mich App 233, 236; 590

NW2d 302 (1998). Consequently, in this case, we see

nothing improper in the trial court’s consideration of

defendant’s role in Pruitt’s death when crafting an appropriate sentence. The evidence introduced at trial included Loyd-Beal’s identification of defendant in her

preliminary examination testimony along with other

evidence establishing defendant’s identity as the

shooter by a preponderance of the evidence. Thus, the

trial court was free to consider defendant’s responsibility for Pruitt’s death as a circumstance surrounding

defendant’s conduct when imposing the sentence for

defendant’s felon in possession conviction.

Regarding the sentence imposed, defendant also

contends that the trial court failed to justify the departure with substantial and compelling reasons. After defendant filed his appellate brief in the present case, our

Supreme Court reached a decision in Lockridge, which,

as described above, rendered the previously mandatory sentencing guidelines “only advisory.” Lockridge,

slip op at 36. Relevant to defendant’s current arguments on appeal, in holding that the guidelines were

now “advisory,” the Court specifically struck down the

requirement that a trial court articulate substantial

and compelling reasons to depart from the guidelines

range as previously required under MCL 769.34(3).

Lockridge, slip op at 29. Consequently, following

App. 85

Lockridge, we no longer consider whether a trial court

articulated substantial and compelling reason to justify a departure; rather, a departure sentence will be

reviewed on appeal for “reasonableness.” Id. Sentencing courts must still articulate justification for the departure sentence in order to facilitate appellate review;

but resentencing will only be required when a sentence

is determined to be “unreasonable.” Id.

The Lockridge Court did not elaborate on the

meaning of “reasonableness.” The phrase was, however,

recently considered by a panel of this Court. Specifically, in People v Steanhouse, this Court considered two

possible approaches to understanding “reasonableness,” and concluded that Lockridge’s adoption of a

reasonableness standard heralded a return to the proportionality principles in place before the enactment of

the legislative guidelines as set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990) and its progeny. See People v Steanhouse, ___ Mich App ___, ___;

___ NW2d ___ (2015), slip op at 23-24. Under this

standard, we apply a “ ‘principle of proportionality’ test

in order to determine whether a trial court abuses its

discretion in imposing a sentence.” Id. at 23, citing Milbourn, 435 Mich at 634-636.

The principle of proportionality requires a trial

court to impose a sentence that takes “into account the

nature of the offense and the background of the offender.” Id., quoting Milbourn, 435 Mich at 651. In this

context, the sentencing guidelines serve as an advisory

“barometer,” that assists the trial court in placing a

given case on the “continuum from the least to the

App. 86

most threatening circumstances.” Id., quoting Milbourn, 435 Mich at 656-657. The trial court has discretion to depart from the sentencing guidelines when the

trial court concludes that the guidelines are disproportionate to the seriousness of the crime. Id., citing Milbourn, 435 Mich at 656-657. The court may consider a

variety of factors when sentencing, including among

others, (1) the seriousness of the offense; (2) factors not

considered by the guidelines, such as the relationship

between the victim and the aggressor, the defendant’s

misconduct while in custody, the defendant’s expressions of remorse, and the defendant’s potential for rehabilitation, and (3) factors that were inadequately

considered by the guidelines in a particular case. Id. at

24 (citation omitted).

On appeal, we review the trial court’s sentencing

decision for an abuse of discretion, and a trial court will

be said to have abused its discretion “if that sentence

violate[d] the principle of proportionality, which require[d] sentences imposed by the trial court to be proportionate to the seriousness of the circumstances

surrounding the offense and the offender.” Id. at 23,

quoting Milbourn, 435 Mich at 636.

Where there is a departure from the sentencing guidelines, an appellate court’s first inquiry should be whether the case involves

circumstances that are not adequately embodied within the variables used to score the

guidelines. A departure from the recommended range in the absence of factors not adequately reflected in the guidelines should

App. 87

alert the appellate court to the possibility that

the trial court has violated the principle of

proportionality and thus abused its sentencing discretion. Even where some departure

appears to be appropriate, the extent of the

departure (rather than the fact of the departure itself ) may embody a violation of the

principle of proportionality. [Id., quoting Milbourn, 435 Mich at 659–660.]

In this case, the trial court sentenced defendant

before the decisions in Lockridge and Steanhouse were

issued. Consequently, the trial court articulated substantial and compelling reasons for departing, rather

than focusing on the “reasonableness” of the sentence

imposed. In these circumstances, the Steanhouse

Court determined that a remand for a Crosby hearing

is the appropriate remedy. Steanhouse, slip op at 25.

Resentencing is not necessarily required incident to a

Crosby hearing; rather, at a Crosby hearing the sentencing court, now fully informed of the new sentencing regime, determines whether or not to resentence.

Lockridge, slip op at 33-36, citing Crosby, 397 F2d 117118. In other words, “the purpose of a Crosby remand

is to determine what effect Lockridge would have on

the defendant’s sentence, so that it may be determined

whether any prejudice resulted from the error.” People

v Stokes, ___ Mich App ___, ___; ___ NW2d ___ (2015),

slip op at 11. Under the new sentencing regime now in

place, a defendant may face a more severe sentence at

resentencing and, for this reason, a defendant is provided with an opportunity to avoid resentencing by

promptly notifying the trial judge that resentencing

App. 88

will not be sought. Id. at 11-12. Consequently, in keeping with Steanhouse, we remand this case for a Crosby

hearing following the procedures set forth in

Lockridge. Steanhouse, slip op at 25. Defendant may

elect to forego resentencing and must promptly notify

the trial court of this decision. Id. “If notification is not

received in a timely manner, the trial court shall continue with the Crosby remand procedure as explained

in Lockridge.” Id. (citation and quotation marks omitted).

II.

DEFENDANT’S STANDARD 4 BRIEF

In a Standard 4 brief, defendant raises three additional arguments. First, relying on MCL 769.11b, defendant argues that he was denied credit for 268 days

served before his convictions. Contrary to defendant’s

argument, the judgment of sentence clearly indicates

that he was credited with 268 days in relation to his

felony-firearm conviction. Defendant appears to believe that he was also entitled to this credit in relation

to his felon in possession sentence or that, alternatively, the credit should have instead been applied to

his felon in possession sentence rather than his felonyfirearm sentence. But, as noted, defendant’s sentences

are consecutive, not concurrent, and in these circumstances the jail credit was properly applied only to the

felony-firearm sentence which, according to the judgment of sentence, is to precede his felon in possession

sentence. See People v Cantu, 117 Mich App 399, 402404; 323 NW2d 719 (1982).

App. 89

Second, defendant argues that the evidence was

insufficient to sustain his convictions beyond a reasonable doubt. Specifically, defendant contends that the

prosecution presented no evidence to establish that defendant was present at the scene or that he possessed

a gun. Further, defendant claims that, because the jury

found him not guilty of murder, they could not convict

him of felon in possession or felony firearm. Defendant

also argues that trial counsel provided ineffective assistance by failing to move for a directed verdict or a

new trial.

We review de novo a challenge to the sufficiency of

the evidence. People v Ericksen, 288 Mich App 192, 195;

793 NW2d 120 (2010). When determining whether the

prosecutor presented sufficient evidence to sustain a

conviction, we consider the evidence in a light most favorable to the prosecutor to ascertain whether a rational trier of fact could find the defendant guilty

beyond a reasonable doubt. People v Tennyson, 487

Mich 730, 735; 790 NW2d 354 (2010). Direct evidence

as well as circumstantial evidence and reasonable inferences arising therefrom can constitute satisfactory

proof of the elements of a crime. People v Nowack, 462

Mich 392, 400; 614 NW2d 78 (2000). It is for the jury

to determine witness credibility and to resolve any inconsistencies in the testimony; and, this Court will not

interfere with the jury’s role as fact-finder. People v

Harverson, 291 Mich App 171, 175, 179; 804 NW2d 757

(2010). Rather, “a reviewing court is required to draw

all reasonable inferences and make credibility choices

App. 90

in support of the jury verdict.” Nowack, 462 Mich at

400.

In this case, defendant does not dispute that he

was a felon ineligible to possess a firearm, and he does

not dispute that someone at the scene possessed a firearm. Instead, defendant essentially argues that there

was no evidence that he was identified as present during the crime or as being the person in possession of

the gun. Defendant is correct in his assertion that

identity is an element of every offense. People v Yost,

278 Mich App 341, 356; 749 NW2d 753 (2008). However, contrary to defendant’s arguments, there was sufficient evidence to establish his identity as the

individual in possession of a gun at the scene. Calais,

who was behind a turquoise car, saw an unidentified

man shooting a gun before running away. Loyd-Deal

stated that she saw defendant get out of a car that was

the same color as the one in front of Calais. Loyd-Deal

identified defendant as the man having a heated argument with Pruitt regarding Drain. And, most notably,

Loyd-Deal testified that, after she heard a shot fired,

she went to her window and she saw defendant shoot

Pruitt three times. Indeed, Loyd-Deal testified that she

saw defendant with a gun more than once during the

incident. Fuse testified that defendant called him a

couple days after Pruitt died and that, consistent with

Loyd-Deal’s description of events, defendant told Fuse

that he did something stupid and shot “someone” while

arguing with a man over a girl. Thus, it was reasonable

for the jury to conclude from the evidence presented

that defendant was at the scene and in possession of a

App. 91

gun. Although on appeal defendant highlights inconsistencies in the evidence and in Loyd-Deal’s testimony

in particular, these issues were for the jury to resolve.2

See Harverson, 291 Mich App at 175, 179. Viewed in a

light most favorable to the prosecution, the direct and

circumstantial evidence, as well as all reasonable inferences that may be drawn, was sufficient to support

defendant’s convictions beyond a reasonable doubt.

See Nowack, 462 Mich at 400.

Insofar as defendant asserts that trial counsel provided ineffective assistance by failing to move for a directed verdict or a new trial, his claims are without

merit. To establish a claim of ineffective assistance of

counsel a defendant must show “(1) that counsel’s representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different.” People v

There is also no merit to defendant’s assertion that his convictions were not supported by sufficient evidence simply because

the jury returned a not guilty verdict with respect to open murder.

Although it is not entirely clear from defendant’s argument, it appears to be his contention that there is some inconsistency in the

verdicts that renders his convictions infirm. But, even supposing

that there was some inconsistency in the verdicts, this would not

entitle defendant to relief because “inconsistent verdicts within a

single jury trial are permissible.” People v Wilson, 496 Mich 91,

100; 852 NW2d 134 (2014). Moreover, in this case, the jury’s verdicts are not necessarily inconsistent. The jury could have found

credible Loyd-Deal’s testimony that defendant was present with

a gun while at the same time they might have had reasonable

doubts about Loyd-Deal’s statement that she saw defendant shoot

Pruitt given that she also testified that she was in the kitchen on

the phone when she initially heard shots fired.

App. 92

Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014)

(quotation marks and citations omitted). The effective

assistance of counsel is presumed, and the defendant

bears the heavy burden of proving otherwise. People v

Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001).

Counsel is not considered ineffective for failing to

make meritless arguments or for failing to pursue a

futile motion. People v Riley, 468 Mich 135, 142; 659

NW2d 611 (2003); People v Ericksen, 288 Mich App 192,

201; 793 NW2d 120 (2010).

In this case, defendant argues that his trial counsel provided ineffective assistance because he did not

move for a directed verdict. However, such a motion

would have been futile because the evidence discussed

above, along with the physical evidence that Pruitt

died of a homicide after he was shot at close range, provided a basis for a reasonable juror to convict defendant of the crimes for which he was charged, including

murder. Counsel was not ineffective for failing to make

a futile motion. Riley, 468 Mich at 142.

Finally, defendant argues that the trial court

abused its discretion by admitting Loyd-Deal’s preliminary examination testimony and her 911 call at trial.3

Insofar as defendant challenges the admission of LoydDeal’s 911 call, defendant waived any error in this regard because

it was defense counsel who introduced Loyd-Deal’s 911 call into

evidence at trial. “Defendant may not assign error on appeal to

something that his own counsel deemed proper at trial.” People v

Barclay, 208 Mich App 670, 673; 528 NW2d 842 (1995). Further,

decisions regarding what evidence to present are matters of trial

strategy, People v Horn, 279 Mich App 31, 39; 755 NW2d 212

(2008), and it is clear that counsel was not ineffective for

App. 93

Specifically, defendant categorizes the evidence as inadmissible hearsay, he contends that Loyd-Deal was

lacking the requisite mental capacity when she testified at the preliminary examination due to her poor

health and, relying on MRE 403, defendant contends

that this evidence was irrelevant and unfairly prejudicial. Defendant also argues that his trial counsel was

ineffective in failing to object to the admission of this

evidence or to file a motion in limine for the exclusion

of this evidence.

We review a trial court’s decision to admit evidence for an abuse of discretion. People v Duncan, 494

Mich 713, 722; 835 NW2d 399 (2013). “A trial court

abuses its discretion when its decision falls outside the

range of reasonable and principled outcomes.” Id. at

722-723. Preliminary questions of law, including

whether a rule of evidence precludes admissibility of

evidence, are reviewed de novo. People v Lukity, 460

Mich 484, 488; 596 NW2d 607 (1999). A court necessarily abuses its discretion when it admits evidence

that is inadmissible as a matter of law. Id.

In this case, contrary to defendant’s arguments,

Loyd-Deal’s testimony was plainly relevant. She was

present at the scene, she observed defendant with a

gun, and she testified that she saw defendant shoot

introducing this evidence because counsel used the 911 call to discredit Loyd-Deal’s testimony by asserting that she did not identify defendant during the 911 call as the shooter when events

were “still fresh in her mind” and that she instead “developed the

story about [defendant] after the fact.” We need not consider the

911 call further.

App. 94

Pruitt three times. Her testimony thus constituted evidence making it more probable that defendant was in

possession of a gun and that he killed Pruitt. Because

Loyd-Deal’s testimony was relevant to facts of consequence, it was generally admissible. See MRE 401;

MRE 402. Further, although Loyd-Deal’s preliminary

examination testimony constituted hearsay, see MRE

801, it was nonetheless admissible because Loyd-Deal

was unavailable at trial and she testified at the preliminary examination, during which defendant had an

opportunity and similar motive to develop her testimony on cross examination. See MRE 804(a)(4); MRE

804(b)(1).

Nonetheless, defendant claims Loyd-Deal’s testimony was inadmissible because she was mentally incompetent. In support of this argument, defendant

notes that Loyd-Deal testified during the preliminary

examination from a hospital bed in the courtroom. Although it would appear that Loyd-Deal was in poor

physical health at the time of the examination, and in

fact died shortly thereafter, it is nonetheless true that

“a witness is presumed to be competent to testify.” People v Flowers, 222 Mich App 732, 737-738; 565 NW2d

12 (1997). Under MRE 601, “[u]nless the court finds after questioning a person that the person does not have

sufficient physical or mental capacity or sense of obligation to testify truthfully and understandably, every

person is competent to be a witness except as otherwise provided in these rules.” See also People v Breck,

230 Mich App 450, 457; 584 NW2d 602 (1998). There is

no indication that Loyd-Deal lacked this capacity and

App. 95

the mere fact of her poor health does not, on its own,

render her incompetent within the meaning of MRE

601.4

In addition, defendant argues that her testimony

should have been excluded because it was unduly prejudicial and confusing. Even if relevant, evidence may

be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of

the issues, misleading the jury, undue delay, waste of

time, or needless presentation of cumulative evidence.

MRE 403. See also People v Musser, 494 Mich 337, 356;

835 NW2d 319 (2013). Unfair prejudice exists when

there is a tendency that the marginally probative evidence will be given undue or preemptive weight by the

jury. People v Mardlin, 487 Mich 609, 627; 790 NW2d

607 (2010). We have no such concerns in the present

case. Here, the testimony had significant probative

value as substantive evidence of the crimes for which

defendant was charged. It was certainly prejudicial to

the extent that the jury could have relied on it to identify defendant as the perpetrator of the crimes; but, in

this regard, “[a]ll relevant evidence is prejudicial,” and

Insofar as defendant claims counsel should have objected

to Loyd-Deal’s testimony on this basis, we note that it is defendant’s burden to establish the factual predicate for his claim. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001). Without

evidence to support the assertion that Loyd-Deal was incompetent within the meaning of MRE 601, there is no factual support

for defendant’s claim that counsel provided ineffective assistance

of counsel by failing to object to her testimony on this basis. Thus,

defendant’s ineffective assistance of counsel claim must fail. See

Carbin, 463 Mich at 600-601.

App. 96

we see nothing unfairly prejudicial in this evidence

which would require its exclusion. See People v

McGhee, 268 Mich App 600, 613-614; 709 NW2d 595

(2005). Nor can we discern any basis for concluding

that the evidence was so confusing as to substantially

outweigh the significant probative value of the evidence. Consequently, the trial court did not abuse its

discretion by admitting Loyd-Deal’s testimony.

Having concluded that the trial court did not

abuse its discretion by admitting Loyd-Deal’s testimony, we also reject defendant’s assertion that his trial

counsel was ineffective for failing to object to the admission of this testimony based on the various reasons

asserted by defendant on appeal. First, the decision to

object is typically considered a matter of trial strategy,

People v Matuszak, 263 Mich App 42, 58; 687 NW2d

342 (2004), and in this case the record shows that counsel did raise objections to portions of Loyd-Deal’s testimony and that counsel succeeded in having some of her

testimony redacted before it was presented to the jury.

Second, overall, the testimony that was ultimately admitted was admissible for the reasons discussed supra

and counsel cannot be considered inef

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