Amicus Curiae Brief — Erick Allen Osby, Petitioner v. United States

No. 20-1693

IN THE

Supreme Court of the United States

_________________________________________________

ERICK ALLEN OSBY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION, THE

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE

LAWYERS, DREAM CORPS JUSTICE, AND THE R

STREET INSTITUTE IN SUPPORT OF PETITIONER

————

JEFFREY T. GREEN

MICHAEL PEPSON*

Co-Chair, Amicus Curiae AMERICANS FOR

Committee

PROSPERITY FOUNDATION

NATIONAL ASSOCIATION

1310 N. Courthouse Road,

OF CRIMINAL DEFENSE

Ste. 700

LAWYERS

Arlington, VA 22201

1660 L Street, N.W. #12 (571) 329-4529

Washington, DC 20005

mpepson@afphq.org

Counsel for Amici Curiae

June 30, 2021

* Counsel of Record

i

TABLE OF CONTENTS

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

Brief of Amici Curiae in Support of Petitioner .......... 1

Interest of Amici Curiae ............................................... 1

Summary of Argument ................................................. 3

Argument ....................................................................... 6

I.

II.

Acquitted-Conduct Sentencing Cannot be

Squared With the Sixth Amendment ................. 6

A.

The Sixth Amendment Requires Juries

Find All Facts Legally Necessary to Justify

a Defendant’s Sentence ............................... 6

B.

Reliance on Judge-Found Facts to Triple

Mr. Osby’s Sentence Violates the Sixth

Amendment Jury Trial Right ..................... 9

Use of Acquitted Conduct at Sentencing Guts the

Presumption of Innocence ................................. 14

A.

The Reasonable Doubt Standard Protects

Against Wrongful Punishment ................. 14

B.

Judicial Factfinding Using the Lower

Preponderance Standard to Overrule a Jury

Acquittal Violates Due Process ................. 16

III. Use of Acquitted Conduct at Sentencing

Undermines the Legitimacy of Our Criminal

Justice System .................................................... 19

Conclusion ................................................................... 24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) ...................................... 15, 16

Alleyne v. United States,

570 U.S. 99 (2013) .................................................8

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...................................... 7, 8, 9

Blakely v. Washington,

542 U.S. 296 (2004) ...................................... 6, 7, 9

Coffin v. United States,

156 U.S. 432 (1895) .............................................14

Edwards v. Vannoy,

593 U. S. ____ (2021) ...........................................23

Gall v. United States,

552 U.S. 38 (2007) ...............................................10

Hester v. United States,

139 S. Ct. 509 (2019) .........................................7, 8

In re Winship,

397 U.S. 358 (1970) .......................... 14, 15, 17, 18

Jones v. United States,

574 U.S. 948 (2014) ............................ 8, 10, 11, 12

iii

Koon v. United States,

518 U.S. 81 (1996) ...............................................10

Lafler v. Cooper,

566 U.S. 156 (2012) .............................................21

Lego v. Twomey,

404 U.S. 477 (1972) ...................................... 17, 18

Neder v. United States,

527 U.S. 1 (1999) ...............................................6, 7

People v. Beck,

939 N.W.2d 213 (Mich. 2019) .............................22

Ring v. Arizona,

536 U.S. 584 (2002) ...............................................8

Rita v. United States,

551 U.S. 338 (2007) .............................................11

Speiser v. Randall,

357 U.S. 513 (1958) .............................................17

United States v. Baylor,

97 F.3d 542 (D.C. Cir. 1996) ........................ 12, 13

United States v. Bell,

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

United States v. Booker,

543 U.S. 220 (2005) ...................................... 11, 16

United States v. Brown,

892 F.3d 385 (D.C. Cir. 2018).............................22

iv

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) ....................... 12, 23

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005) ...............23

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) ............. 12, 14, 19

United States v. Fatico,

458 F. Supp. 388 (E.D.N.Y. 1978) ......................16

United States v. Haymond,

139 S. Ct. 2369 (2019) .................................... 8, 19

United States v. Jones,

863 F. Supp. 575 (N.D. Ohio 1994) ....................21

United States v. Lasley,

832 F.3d 910 (8th Cir. 2016) ..............................12

United States v. O’Brien,

560 U.S. 218 (2010) .............................................16

United States v. Mercado,

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

United States v. Restrepo,

946 F.2d 654 (9th Cir. 1991) ..............................18

United States v. Sabillon-Umana,

772 F.3d 1328 (10th Cir. 2014) ................... 11, 12

United States v. Scheiblich,

346 F. Supp. 3d 1076 (S.D. Ohio 2018) ...... 21, 23

v

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008)...................... 22, 23

United States v. Shepard,

892 F.3d 666 (4th Cir. 2018) ..............................10

United States v. St. Hill,

768 F.3d 33 (1st Cir. 2014) .......................... 19, 20

United States v. Watts,

519 U.S. 148 (1997) ................................ 16, 22, 24

United States v. White,

551 F.3d 381 (6th Cir. 2008) ....... 6, 11, 12, 14, 22

Constitution

U.S. Const. Art. III, § 2 ..............................................6

U.S. Const. amend. VI ...............................................6

Statutes

18 U.S.C. § 1001 ........................................................19

18 U.S.C. § 1519 ........................................................19

18 U.S.C. § 3553(a) .....................................................9

18 U.S.C. § 3661 ..........................................................4

21 U.S.C. § 841(a)(1) ...................................................9

21 U.S.C. § 841(b)(1)(C)..............................................9

vi

Guidelines Provisions

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

U.S.S.G. § 5H1.1 .......................................................10

Rules

Sup. Ct. Rule 37.2 .......................................................1

Other Authorities

Barry L. Johnson,

The Puzzling Persistence of Acquitted

Conduct in Federal Sentencing, and

What Can be Done About It,

49 Suffolk U. L. Rev. 1 (2016) ..................... 19, 20

C.M.A. McCauliff,

Burdens of Proof: Degrees of Belief,

Quanta of Evidence, or Constitutional

Guarantees?,

35 Vand. L. Rev. 1293 (1982) .............................17

Eang Ngov,

Judicial Nullification of Juries: The Use

of Acquitted Conduct at Sentencing,

76 Tenn. L. Rev. 235 (2009)......................... 20, 21

Federalist No. 83.........................................................7

vii

Nancy Gertner,

A Short History of American Sentencing:

Too Little Law, Too Much Law, or Just

Right, 100 J. of Crim. L. and

Criminology 691 (2010).........................................7

National Association of Criminal Defense

Lawyers, The Trial Penalty: The Sixth

Amendment Right to Trial on the Verge

of Extinction and How to Save It (2018),

https://www.nacdl.org/Document/TrialPe

naltySixthAmendmentRighttoTrialNear

Extinct ............................................................. 5, 21

Vikrant P. Reddy & Jordan Richardson,

Why the Founders Cherished the Jury,

31 Fed. Sent. R. 316 (2019) ..............................6, 7

4 William Blackstone, Commentaries (1769) .........15

1

BRIEF OF AMICI CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, amici curiae

respectfully submit this brief in support of Petitioner.1

INTEREST OF AMICI CURIAE

Americans for Prosperity Foundation (“AFPF”) is

a 501(c)(3) nonprofit organization committed to

educating and training Americans to be courageous

advocates for the ideas, principles, and policies of a

free and open society. As part of this mission, it

appears as amicus curiae before federal and state

courts. AFPF is part of a transpartisan coalition of

organizations that advocate for an array of consensusbased criminal justice reforms. AFPF believes the

Sixth Amendment jury trial right and related due

process requirement that the government must prove

beyond a reasonable doubt each fact necessary to

support a sentence must be honored.

The National Association of Criminal Defense

Lawyers (“NACDL”) is a nonprofit voluntary

professional bar association that works on behalf of

criminal defense attorneys to ensure justice and due

process for those accused of crime or misconduct.

NACDL was founded in 1958. It has a nationwide

membership of many thousands of direct members,

All parties have consented to the filing of this brief after

receiving timely notice. Amici state that no counsel for a party

authored this brief in whole or in part and that no person other

than amici or its counsel made any monetary contributions

intended to fund the preparation or submission of this brief.

1

2

and up to 40,000 counting affiliates. NACDL’s

members include private criminal defense lawyers,

public defenders, military defense counsel, law

professors, and judges. NACDL is the only nationwide

professional bar association for public defenders and

private criminal defense lawyers. NACDL is dedicated

to advancing the proper, efficient, and just

administration of justice. NACDL files numerous

amicus briefs each year in the U.S. Supreme Court

and other federal and state courts, to provide amicus

assistance in cases that present issues of broad

importance to criminal defendants, criminal defense

lawyers, and the criminal justice system as a whole.

The R Street Institute is a non-profit, nonpartisan

public policy research organization. R Street’s mission

is to engage in policy research and educational

outreach that promotes free markets, as well as

limited yet effective government, including properly

calibrated legal and regulatory frameworks that

support individual liberty and economic growth.

Dream Corps is a 501(c)(3) nonprofit organization

committed to closing prison doors and opening doors

of opportunity. Our organization works across the

United States to reform our criminal justice system at

the federal, state, and local level through our “Dream

Corps JUSTICE” program. Dream Corps JUSTICE

centers directly impacted people, brings together

diverse stakeholders, and mobilizes cultural

influencers to provide bi-partisan solutions. A number

of our members and their families are directly

impacted by the issues before this Court, raised in

the amicus below.

3

SUMMARY OF ARGUMENT

Trial courts can, and should, reverse a jury’s guilty

verdict when the prosecution fails to adduce sufficient

evidence for any rational jury to have reached that

decision. And courts can, and should, vacate guilty

verdicts flowing from constitutional violations, in

cases where new evidence emerges showing the

defendant is actually innocent, and in other

appropriate cases. Likewise, judge-found facts at

sentencing justifying leniency pose no constitutional

problem. None of these judicial actions violate the core

tenants of our justice system.

But a sentencing judge should not be allowed to

overrule a jury’s acquittal of a criminal defendant and

punish him for that same acquitted conduct. Yet all

too many criminal defendants who were acquitted of

more serious criminal charges but convicted on one or

more lower charges face judges doing just that. How

is this constitutionally dubious sentencing practice

possible? Put simply, sentencing judges are permitted

under this Court’s precedents to do what Apprendi

and its progeny later prohibited; namely, find facts

that increase the punishment beyond that authorized

by the jury’s findings of guilt.

To be sure, at trial, due process requires the

prosecution to prove every fact necessary for

conviction beyond a reasonable doubt. And if a jury

determines the government has not met that high

burden with respect to one or more charges, that

results in a not-guilty verdict for those charges, even

though the jury might reach a guilty verdict on

different charges in the same trial.

4

But when a defendant in these circumstances is

sentenced for the charge(s) he or she was convicted of,

very different rules apply. At that point, under the

federal sentencing regime, it is the trial judge—not

the jury—who makes factual findings relevant to

determining the Guidelines range and what the

defendant’s sentence should be. At sentencing, the

preponderance of the evidence standard applies. That

standard, which is a far lower bar than the reasonable

doubt standard, is met if the judge finds that it is more

likely than not that the conduct occurred. And by

statute, “[n]o limitation shall be placed on the

information concerning the background, character,

and conduct of a person convicted of an offense which

a court . . . may . . . consider for the purpose of

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

See also U.S.S.G. § 1B1.3.

Taken together, this means a trial court can find

at sentencing—using a lower standard of proof—that

the defendant committed alleged conduct a jury just

found the defendant not guilty of, and then rely on

these factual findings to legally justify increased

punishment. In other words, unless the defendant is

found not guilty of all charges, the trial judge can

dramatically increase the punishment for the charges

the defendant was convicted of based on alleged

conduct the defendant was acquitted of.

That is exactly what happened here. Petitioner

was convicted of one set of drug charges, stemming

from a search of a car, but acquitted of a related gun

charge, as well as a different set of gun and drug

charges, stemming from a search of a hotel room. The

Guidelines range for the car charges would have been

24–30 months. But because the district court included

5

the acquitted charges in calculating Mr. Osby’s

Guidelines range, it increased to 87–108 months.

Despite the jury’s verdict, the Guidelines range was

more than tripled because of acquitted conduct. The

district court sentenced him to 87 months by, in

essence, overruling the jury’s acquittal decisions.

That counterintuitive result is wrong. Acquittedconduct sentencing flips the presumption of innocence

on its head by allowing judges to overrule unanimous

jury acquittals based on judge-found facts using the

far lower preponderance standard, gutting the Sixth

Amendment’s jury-trial right. At a minimum, the

Sixth Amendment jury-trial right, coupled with the

due process requirement that all facts necessary to

legally authorize punishment must be proven beyond

a reasonable doubt, should bar judges from using the

same alleged conduct a jury acquitted a defendant of

to justify dramatically increasing a defendant’s

Guidelines range and sentence.

The real-world stakes of this case are also high.

Acquitted-conduct sentencing contributes to what is

known as the “trial penalty” and to the government’s

ability to coerce guilty pleas. See generally National

Association of Criminal Defense Lawyers, The Trial

Penalty: The Sixth Amendment Right to Trial on the

Verge of Extinction and How to Save It (2018),

https://www.nacdl.org/Document/TrialPenaltySixthA

mendmentRighttoTrialNearExtinct. Further, this

perverse practice materially increases the risk that

defendants are being punished for alleged conduct

that they are actually innocent of. This should not be

allowed to stand. And this case presents an ideal

vehicle for correcting this injustice.

6

ARGUMENT

I.

ACQUITTED-CONDUCT SENTENCING CANNOT

BE SQUARED WITH THE SIXTH AMENDMENT.

A. The Sixth Amendment Requires Juries

Find All Facts Legally Necessary to

Justify a Defendant’s Sentence.

“It is hard to overemphasize the importance of trial

by jury for our revolutionary ancestors who wrote the

Declaration

of

Independence,

framed

the

Constitution, ratified it in state conventions, and

explained it in the Federalist Papers.” United States

v. White, 551 F.3d 381, 392 (6th Cir. 2008) (en banc)

(Merrit, J., dissenting). See generally Vikrant P.

Reddy & Jordan Richardson, Why the Founders

Cherished the Jury, 31 Fed. Sent. R. 316 (2019).

Under the Sixth Amendment, “[i]n all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury[.]” U.S.

Const. amend. VI. The jury-trial right is also

memorialized in Article III itself: “The Trial of all

Crimes . . . shall be by Jury[.]” U.S. Const. Art. III, § 2.

This constitutional guarantee is unique because it is

“the only one to appear in both the body of the

Constitution and the Bill of Rights[.]” Neder v. United

States, 527 U.S. 1, 30 (1999) (Scalia, J., concurring in

part, dissenting in part).

The jury-trial “right is no mere procedural

formality, but a fundamental reservation of power in

our constitutional structure. Just as suffrage ensures

the people’s ultimate control in the legislative and

executive branches, jury trial is meant to ensure their

control in the judiciary.” Blakely v. Washington, 542

7

U.S. 296, 305–06 (2004) (Scalia, J.); see also Neder,

527 U.S. at 30 (Scalia, J., concurring in part,

dissenting in part) (characterizing jury trial right as

“the spinal column of American democracy”). “[T]he

institution of the jury was the final check to hold all

three branches accountable.” 2 Reddy & Richardson,

31 Fed. Sent. R. 316.

“[T]he jury-trial guarantee was one of the least

controversial provisions of the Bill of Rights. It has

never been efficient; but it has always been free.”

Apprendi v. New Jersey, 530 U.S. 466, 498 (2000)

(Scalia, J., concurring). As Alexander Hamilton wrote:

“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.” Federalist No. 83.

As Justice Scalia explained, the jury trial right

“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.” Apprendi, 530 U.S. at 499 (Scalia,

J., concurring). This means that “[i]f you’re charged

with a crime, the Sixth Amendment guarantees you

the right to a jury trial. From this, it follows the

2 “In colonial

times, . . . juries were de facto sentencers with

substantial power. . . . In fact, several colonies explicitly provided

for jury sentencing.” Nancy Gertner, A Short History of American

Sentencing: Too Little Law, Too Much Law, or Just Right, 100 J.

of Crim. L. and Criminology 691, 692–93 (2010).

8

prosecutor must prove to a jury all of the facts legally

necessary to support your term of incarceration.”

Hester v. United States, 139 S. Ct. 509, 509 (2019)

(Gorsuch, J., joined by Sotomayor, J., dissenting from

denial of certiorari) (emphasis added).

“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.” Jones v. United States, 574 U.S. 948, 948

(2014) (Scalia, J., joined by Thomas, Ginsburg, JJ.,

dissenting from denial of certiorari)). “Any fact that

increases the penalty to which a defendant is exposed

constitutes an element of a crime,” which cannot be

found by a judge at sentencing. Id.

Instead, “all facts essential to imposition of the

level of punishment that the defendant receives—

whether the statute calls them elements of the

offense, sentencing factors, or Mary Jane—must be

found by the jury beyond a reasonable doubt.” Ring v.

Arizona, 536 U.S. 584, 610 (2002) (Scalia, J.,

concurring); see also Alleyne v. United States, 570 U.S.

99, 114–15 (2013) (“When a finding of fact alters the

legally prescribed punishment so as to aggravate it,

the fact necessarily forms a constituent part of a new

offense and must be submitted to the jury.”). “[A]ny

increase in a defendant’s authorized punishment

contingent on the finding of a fact requires a jury and

proof beyond a reasonable doubt no matter what the

government chooses to call the exercise.” United

States v. Haymond, 139 S. Ct. 2369, 2379 (2019)

(cleaned up).

9

As Justice Thomas has suggested, since “a ‘crime’

includes every fact that is by law a basis for imposing

or increasing punishment,” to determine whether the

Sixth Amendment bars use of judge-found facts to

justify enhanced sentencing, “[o]ne need only look to

the kind, degree, or range of punishment to which the

prosecution is by law entitled for a given set of facts.

Each fact necessary for that entitlement is an

element.” Apprendi, 530 U.S. at 501 (Thomas, J.,

concurring). And, of course, elements are subject to

the Sixth Amendment jury-trial right and must be

proven beyond a reasonable doubt. See also Blakely,

542 U.S. at 301, 304. That did not happen here.

B. Reliance on Judge-Found Facts to

Triple Mr. Osby’s Sentence Violates the

Sixth Amendment Jury Trial Right.

The district court’s reliance on factual findings it

made under the preponderance standard regarding

conduct a jury acquitted Mr. Osby of tripled both his

Guidelines range and actual sentence. Had the

district court sentenced him to 87 months when the

Guidelines range was set at 24–30 months (as it would

have been sans the acquitted conduct), see Pet. Br. 5–

7, the sentence imposed in this case would likely be

substantively unreasonable. See Pet. Br. 12–13.

Several factors suggest an upward variance of this

magnitude could not be justified under the 18 U.S.C.

§ 3553(a) factors without reference to the acquitted

conduct.

There was nothing unusual about the two

possession-with-intent-to-distribute counts Mr. Osby

was convicted of relating to the car search. See Pet.

App. 68a–72a; 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The

10

jury acquitted Mr. Osby of all gun-related charges, as

well as all drug charges relating to the hotel room. See

Pet. App. 113a–115a. This is a straightforward

“heartland” case calling for a within-Guidelines

sentence. See generally Koon v. United States, 518

U.S. 81, 93 (1996). Any departure or variance would

be difficult to justify.3 See Gall v. United States, 552

U.S. 38, 50 (2007) (the greater the variance, the more

compelling the justification must be). Without use of

the acquitted conduct, Mr. Osby’s Guidelines range

was 24–30 months; with the acquitted conduct,

however, Mr. Osby’s Guidelines range changed to 87–

108 months, which, in turn, rendered the 87-month

sentence a low-end within Guidelines sentence.4

Thus, but for the district court’s factual findings that

were used to justify this dramatic increase in the

Guidelines range, the sentence imposed would not

have been lawful.

That is because, as Justice Scalia, joined by

Justices Ginsburg and Thomas, has explained, “any

fact necessary to prevent a sentence from being

substantively unreasonable—thereby exposing the

defendant to the longer sentence—is an element that

must be either admitted by the defendant or found by

the jury. It may not be found by a judge.” Jones, 574

3 Mr. Osby, who is in his

late twenties now and suffers from

depression, had no prior felony convictions, nor had he been

incarcerated before for any significant period of time. See Pet.

App. 80a, 84a, 86a; see also U.S.S.G. § 5H1.1 (age).

4 But for use of acquitted conduct, Mr. Osby’s Guidelines range

would be improperly calculated, thereby rendering his sentence

procedurally unreasonable and thus unlawful for that reason.

See United States v. Shephard, 892 F.3d 666, 670 (4th Cir. 2018).

11

U.S. at 949 (Scalia, J., dissenting from denial of

certiorari). Indeed, this case presents the precise

situation Justice Scalia warned of in Rita v. United

States, 551 U.S. 338, 374–75 (2007) (Scalia, J.,

concurring in part), in which judicial factfinding

violates the Sixth Amendment as applied to a

particular defendant—regardless whether these

judge-found facts related to uncharged or, as here,

acquitted conduct.5 See id. at 366 (Stevens, J., joined

in part by Ginsburg, J., concurring) (“Such a

hypothetical case should be decided if and when it

arises”). That is because “[t]he Constitution prohibits

allowing a judge alone to make a finding that raises

the sentence beyond the sentence that could have

lawfully been imposed by reference to facts found by

the jury or admitted by the defendant.”6 United States

v. Booker, 543 U.S. 220, 313 (2005) (Thomas, J.,

dissenting); see also United States v. Sabillon-Umana,

772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.)

(questioning constitutionality of judge changing

defendant’s sentence “within the statutorily

“[T]here is a fundamental difference . . . between facts

that must be found in order for a sentence to be lawful, and facts

that individual judges choose to make relevant to the exercise of

their discretion. The former, but not the latter, must be found by

the jury beyond a reasonable doubt[.]” Rita, 551 U.S. at 373

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

(cleaned up; emphasis in original).

6 Cf. White, 551 F.3d at 386–87 (Merritt, J., dissenting) (“Because

the sentence cannot be upheld as reasonable without accepting

as true certain judge-found facts, the sentence represents an asapplied [Sixth Amendment] violation[.]”).

5

12

authorized range based on facts the judge finds

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

But leaving that aside, here, as in Jones, “not only

did no jury convict” Mr. Osby “of the offense the

sentencing judge thought them guilty of, but a jury

acquitted them of that offense.” Jones, 574 U.S. at 949

(Scalia, J., dissenting from denial of certiorari). “The

fact that a jury has not authorized a particular

punishment is never more clear than when the jury is

asked for, yet specifically withholds, that

authorization.” United States v. Mercado, 474 F.3d

654, 664 (9th Cir. 2007) (Fletcher, J., dissenting).

Nonetheless, the district court used this acquitted

conduct to triple Mr. Osby’s sentence. That was error

of constitutional dimension, and it was far from

harmless. Cf. United States v. Canania, 532 F.3d 764,

776 (8th Cir. 2008) (Bright, J., concurring).

“This has gone on long enough.” Jones, 574 U.S. at

949 (Scalia, J., dissenting from denial of certiorari).

For decades now, numerous federal judges have

questioned the constitutionality of this sentencing

practice. See, e.g., United States v. Lasley, 832 F.3d

910, 921 (8th Cir. 2016) (Bright, J., dissenting)

(collecting cases); United States v. Bell, 808 F.3d 926,

932 (D.C. Cir. 2015) (Millett, J., concurring in the

denial of rehearing en banc); White, 551 F.3d at 386–

97 (Merrit, J., dissenting); United States v. Faust, 456

F.3d 1342, 1348–53 (11th Cir. 2006) (Barkett, J.,

specially concurring). Indeed, “many individual

judges have expressed in concurrences and dissents

the strongest concerns, bordering on outrage, about

the compatibility of such a practice with the basic

principles underlying our system of criminal justice.”

13

United States v. Baylor, 97 F.3d 542, 549 & n.2 (D.C.

Cir. 1996) (Wald, J., specially concurring).

And for good reason:

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?

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

the denial of rehearing en banc). Permitting “a judge

to dramatically increase a defendant’s sentence based

on jury-acquitted conduct is at war with the

fundamental purpose of the Sixth Amendments jurytrial guarantee.” Id. at 929 (Millett, J., concurring in

the denial of rehearing en banc). “There is something

fundamentally wrong with such a result.” Baylor, 97

F.3d at 549 (Wald, J., specially concurring).7

7 Ironically, “[t]he Declaration of Independence took George III

to task for ‘obstruct[ing] the Administration of Justice’ by

14

II.

USE OF ACQUITTED CONDUCT AT SENTENCING

GUTS THE PRESUMPTION OF INNOCENCE.

Acquitted-conduct sentencing also flips the

presumption of innocence on its head, allowing judges

to make factual findings using the preponderance

standard to punish defendants for alleged conduct

upon which the jury specifically did not find guilt.

This does not just “offer the government a second, if

smaller, bite at the apple in criminal prosecutions”:

“When one looks to the practicalities of the criminal

justice system, it becomes apparent that the most

pernicious effect . . . is its implicit and often hopeless

demand that, in order to avoid punishment for

charged conduct, criminal defendants must prove

their innocence under two drastically different

standards at once.” Faust, 456 F.3d at 1353 (Barkett,

J., specially concurring).

A. The Reasonable Doubt Standard Protects

Against Wrongful Punishment.

The “presumption of innocence in favor of the

accused is the undoubted law, axiomatic and

elementary, and its enforcement lies at the foundation

of the administration of our criminal law.” Coffin v.

United States, 156 U.S. 432, 453 (1895). Due process

requires the government must affirmatively “pro[ve]

beyond a reasonable doubt . . . every fact necessary to

constitute the crime charged.” In re Winship, 397 U.S.

358, 364 (1970). The reasonable doubt standard

‘depriving us in many cases of the benefit of Trial by Jury,’ which

included punishing colonists after the jury had acquitted them.”

White, 551 F.3d at 393 (Merritt, J., dissenting).

15

“give[s] concrete substance to the presumption of

innocence,” id. at 363—the notion that, as Sir William

Blackstone put it, “it is better that ten guilty persons

escape than that one innocent suffer.” 4 William

Blackstone, Commentaries 352 (1769). “The

reasonable doubt standard plays a vital role in the

American scheme of criminal procedure. It is a prime

instrument for reducing the risk of convictions resting

on factual error.” In re Winship, 397 U.S. at 363

(emphasis added).

It also reflects fundamental societal

judgments enshrined in the Constitution:

value

[U]se of the reasonable-doubt standard

is indispensable to command the respect

and confidence of the community in

applications of the criminal law. It is

critical that the moral force of the

criminal law not be diluted by a standard

of proof that leaves people in doubt

whether innocent men are being

condemned. It is also important in our

free society that every individual going

about his ordinary affairs have

confidence that his government cannot

adjudge him guilty of a criminal offense

without convincing a proper factfinder of

his guilt with the utmost certainty.

Id. at 363–64. As Justice Harlan famously put it, “the

requirement of proof beyond a reasonable doubt in a

criminal case is bottomed on a fundamental value

determination of our society that it is far worse to

convict an innocent man than to let a guilty man go

free.” Id. at 372 (Harlan, J., concurring). “The heavy

16

standard applied in criminal cases manifests our

concern that the risk of error to the individual must

be minimized even at the risk that some who are

guilty might go free.” Addington v. Texas, 441 U.S.

418, 428 (1979).

B. Judicial Factfinding Using the Lower

Preponderance Standard to Overrule a

Jury Acquittal Violates Due Process.

At sentencing, the lower preponderance standard

has been deemed to apply to so-called sentencing

factors. See United States v. O’Brien, 560 U.S. 218,

224 (2010); see also United States v. Watts, 519 U.S.

148, 157 (1997) (per curiam) (“[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.”).8 The preponderance

standard merely requires a determination that the

evidence as a whole shows that the fact to be proved

is more probable than not.

“Quantified, the

preponderance standard would be 50+% Probable.”

United States v. Fatico, 458 F. Supp. 388, 403

(E.D.N.Y. 1978). In essence, this standard merely

requires the factfinder have a degree of confidence

marginally greater than he or she would if flipping a

coin. “The litigants thus share the risk of error in

roughly equal fashion.” Addington, 441 U.S. at 423. In

8 “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.” Booker, 543 U.S. at 240 n.4. Watts did not address

the Sixth Amendment, see id. at 240, or the Due Process Clause.

17

light of this lax evidentiary standard’s propensity to

distribute the risk of erroneous fact finding evenly

between the parties, it has been deemed entirely

appropriate for the resolution of disputes in which

“society has a minimal concern with the outcome,”

such as a “typical civil case involving a monetary

dispute between private parties.” Id. See In re

Winship, 397 U.S. at 371–72 (Harlan, J., concurring)

(“In a civil suit between two parties for monetary

damages . . . we view it as no more serious . . . for there

to be an erroneous verdict in the defendant’s favor

than for there to be an erroneous verdict in the

plaintiff’s favor.”).

Regardless of which burden of proof is used, “the

trier of fact will sometimes, despite his best efforts, be

wrong in his factual conclusions.” In re Winship, 397

U.S. at 370 (Harlan, J., concurring). Given that

factfinders will inevitably make mistakes, the burden

of proof will, in criminal cases, “influence the relative

frequency” with which errors benefiting the guilty or,

conversely, errors leading to the conviction of the

innocent occur. See id. at 371 (Harlan, J., concurring);

Speiser v. Randall, 357 U.S. 513, 525–26 (1958)

(noting reasonable doubt standard reduces, as to the

defendant, margin of error in factfinding). In practice,

there is a vast difference between the preponderance

standard and the reasonable doubt standard. See

C.M.A. McCauliff, Burdens of Proof: Degrees of Belief,

Quanta of Evidence, or Constitutional Guarantees?, 35

Vand. L. Rev. 1293, 1322–26 (1982) (outlining the

results of surveys on how judges quantify each burden

of proof). As Justice Brennan noted in a different

context: “Permitting proof by a preponderance of the

evidence would necessarily result in the conviction of

18

more defendants who are in fact innocent.” Lego v.

Twomey, 404 U.S. 477, 493 (1972) (dissenting).

As applied to acquitted-conduct sentencing, this

commonsense observation means in practical terms

that there will be cases where judges are radically

increasing defendants’ sentences based on conduct

they have been found not guilty of and are actually

innocent of. Cf. United States v. Restrepo, 946 F.2d

654, 675 (9th Cir. 1991) (en banc) (Norris, J.,

dissenting) (arguing use of preponderance standard at

sentencing creates significant prospect of erroneous

factfinding). That is the opposite of how our criminal

justice system works, and it ignores the very reason

why the preponderance standard is not used in

criminal cases to adjudicate guilt and innocence. Cf.

id. at 664 (Pregerson, J., dissenting) (“I cannot believe

. . . the Constitution permits the defendant to be

deprived of his freedom and imprisoned for years on

the strength of the same evidence as would suffice in

a civil case.” (cleaned up)). Use of the preponderance

standard at sentencing to justify enhanced

punishment based on acquitted (or, for that matter,

uncharged) conduct is antithetical to fundamental

value determinations our society made long ago, as

memorialized in the Constitution’s guarantee of Due

Process. See In re Winship, 397 U.S. at 371–72

(Harlan, J., concurring).

The mere fact that a defendant whose exposure to

criminal punishment is driven by acquitted conduct

has also been convicted of some other criminal

offense—which may be completely unrelated to and

far less serious than the acquitted conduct—does not

justify either (a) replacing the reasonable doubt

standard with the lower preponderance standard, or

19

(b) allowing a judge to effectively overrule a

unanimous jury acquittal. But that was exactly what

happened to Mr. Osby.

The risk of error should be borne by the

government throughout the course of the “criminal

prosecution”—which unquestionably includes “actual

sentencing proceedings,” see Haymond, 139 S. Ct. at

2395–96 (Alito, J., dissenting)—and should not

suddenly be brought into near equipoise merely

because the defendant was convicted of some other

offense, which may well be completely unrelated.9

III.

USE OF ACQUITTED CONDUCT AT SENTENCING

UNDERMINES THE LEGITIMACY OF OUR

CRIMINAL JUSTICE SYSTEM.

Not only is acquitted-conduct sentencing plainly

unconstitutional, but it is also bad sentencing policy.

As Professor Barry Johnson has explained:

Does this authority reflect sound

sentencing policy? Virtually all academic

commentators conclude that it does not.

The use of acquitted conduct has been

characterized as, among other things,

“Kafka-esque,

repugnant,

uniquely

malevolent, and pernicious.” Others

have observed that use of acquitted

conduct “makes no sense as a matter of

9 For instance, where a defendant is solely convicted of violating

18 U.S.C. § 1001 (generally 0-5 years imprisonment) and/or 18

U.S.C. § 1519 (0-20 years imprisonment) but acquitted of all

other charges relating to the subject of the investigation.

20

law or logic,” and characterized its use as

a “perversion of our system of justice,” as

well as “bizarre” and “reminiscent of

Alice in Wonderland.”

Barry L. Johnson, The Puzzling Persistence of

Acquitted Conduct in Federal Sentencing, and What

Can be Done About It, 49 Suffolk U. L. Rev. 1, 25

(2016) (citations omitted). At a broad level, that about

sums it up. The practical effects of acquitted-conduct

sentencing also warrant discussion.

First, use of the low preponderance standard for

judge-found facts at sentencing wrongly shifts the risk

of erroneous factfinding against the defendant,

increasingly the risk the defendant will be punished

for factually innocent conduct.10 See also Eang Ngov,

Judicial Nullification of Juries: The Use of Acquitted

Conduct at Sentencing, 76 Tenn. L. Rev. 235, 279–84

10 Judge Barkett

has argued that “[w]hen a sentencing judge

finds facts that could, in themselves, constitute entirely freestanding offenses under the applicable law . . . the Due Process

Clause . . . requires that those facts be proved beyond a

reasonable doubt.” Faust, 456 F.3d at 1352 (Barkett, J., specially

concurring). That intuitively makes sense because “[a]ll too

often, prosecutors charge individuals with relatively minor

crimes, carrying correspondingly short sentences, but then use .

. . the Sentencing Guidelines . . . to argue for significantly

enhanced terms of imprisonment under the guise of ‘relevant

conduct’—other crimes that have not been charged (or, if

charged, have led to an acquittal)[.]” United States v. St. Hill,

768 F.3d 33, 39 (1st Cir. 2014) (Torruella, J., concurring).

21

(2009) (arguing jury factfinding tends to be more

accurate than judicial factfinding).

Second, acquitted-conduct sentencing increases

the trial penalty. Cf. Lafler v. Cooper, 566 U.S. 156,

185 (2012) (Scalia, J., dissenting) (recognizing risk of

“prosecutorial overcharging that effectively compels

an innocent defendant to avoid massive risk by

pleading guilty to a lesser offense”). “The real-world

consequence of permitting judge-found fact to increase

a potential punishment is that prosecutors are vested

with a degree of power that would have shocked the

Framers.” United States v. Scheiblich, 346 F. Supp. 3d

1076, 1085 (S.D. Ohio 2018), rev’d, 788 F. App’x 305

(6th Cir. 2019). After all, “[t]he right to a trial by jury

means little if a sentencing judge can effectively veto

the jury’s acquittal on one charge and sentence the

defendant as though he had been convicted of that

charge.” United States v. Jones, 863 F. Supp. 575, 578

(N.D. Ohio 1994).

“In short, allowing jury-acquitted conduct to

increase a defendant’s sentence places defendants and

their attorneys between a proverbial rock and a hard

place: a hard-fought partial victory . . . can be

rendered practically meaningless when that acquitted

conduct

nonetheless produces

a

drastically

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

J., concurring in denial of rehearing en banc). And “a

defendant considering whether to exercise his right to

trial knows that, even if he decides to put the

prosecution to its proof and is acquitted of certain

charged conduct, he may still face an enhancement for

that conduct at sentencing.” National Association of

Criminal Defense Lawyers, The Trial Penalty: The

Sixth Amendment Right to Trial on the Verge of

22

Extinction and How to Save It, 34 (2018),

https://www.nacdl.org/Document/TrialPenaltySixthA

mendmentRighttoTrialNearExtinct.

Third, acquitted-conduct sentencing “guts the role

of the jury in preserving individual liberty and

preventing oppression by the government,” for

“[a]llowing the government to lock people up for a

discrete and identifiable term of imprisonment for

criminal charges rejected by a jury is a dagger pointed

at the heart of the jury system and limited

government.” United States v. Brown, 892 F.3d 385,

408–09 (D.C. Cir. 2018) (Millett, J., concurring).

Relatedly, this practice “also eviscerates the jury’s

longstanding power of mitigation, a close relative of

the power of jury nullification.” White, 551 F.3d at 394

(Merrit, J., dissenting). As Justice Kennedy explained

in his dissenting opinion in Watts, “[a]t the least it

ought to be said that to increase a sentence based on

conduct underlying a charge for which the defendant

was acquitted does raise concerns about undercutting

the verdict of acquittal[.]” Watts, 519 U.S. at 170

(Kennedy, J., dissenting). See also People v. Beck, 939

N.W.2d 213, 227 (Mich. 2019) (Viviano, J., concurring)

(“[I]f a judge may increase a defendant's sentence

beyond what the jury verdict alone authorizes . . . a

more accurate [jury] instruction would read: ‘What

you decide about any fact in this case is interesting,

but the court is always free to disregard it.’”).

Indeed, “[m]any judges and commentators have

similarly argued that using acquitted conduct to

increase a defendant’s sentence undermines respect

for the law and the jury system.” United States v.

Settles, 530 F.3d 920, 924 (D.C. Cir. 2008)

(Kavanaugh, J.).

For instance, Judge Bright

23

observed: “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.” Canania,

532 F.3d at 778 (concurring).11 District courts have

put it more plainly: “A layperson would undoubtedly

be revolted by the idea that, for example, a person’s

sentence for crimes of which he has been convicted

may be multiplied fourfold by taking into account

conduct of which he has been acquitted.” United

States v. Coleman, 370 F. Supp. 2d 661, 671 n.14 (S.D.

Ohio 2005) (citation omitted). “It cannot be said with

a straight face that this shameful practice constitutes

just punishment or promotes respect for the law. . . .

It is time to call this practice what it is:

unconstitutional.” Scheiblich, 346 F. Supp. 3d at 1085.

The sky will not fall if “[a] judge could not rely on

acquitted . . . [or] uncharged conduct to increase a

sentence[.]”12 Bell, 808 F.3d at 927–28 (Kavanaugh,

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

also id. at 928 (“At least as a matter of policy, if not

also as a matter of constitutional law, I would have

little problem with a new federal sentencing regime

11 There is reason to think that jurors and defendants do perceive

the unfairness of this practice. See, e.g., Canania, 532 F.3d at

778 n.4 (Bright, J., concurring) (juror); Settles, 530 F.3d at 924

(defendant).

12 Protecting defendants’ Fifth and Sixth Amendment rights

through sentencing would not cause floodgates or finality

problems. See Edwards v. Vannoy, 593 U. S. ____ (2021) (slip op.,

at 19–20).

24

along those lines.”). This Court should end this

unconstitutional practice.

CONCLUSION

The Petition “raises a question of recurrent

importance in hundreds of sentencing proceedings in

the federal criminal system.” Watts, 519 U.S. at 170

(Kennedy, J., dissenting). This Court should grant

Mr. Osby’s Petition.

Respectfully submitted,

Michael Pepson*

AMERICANS FOR PROSPERITY FOUNDATION

1310 N. Courthouse Road, Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

* Counsel of Record

JEFFREY T. GREEN

Co-Chair, NACDL Amicus

Committee

1660 L Street, N.W.

Washington, DC 20036

June 30, 2021