Amicus Curiae Brief — Dayonta McClinton, Petitioner v. United States

Supreme Court briefJun 30, 2022

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No. 21-1557

IN THE

Supreme Court of the United States

_________________________________________________

DAYONTA MCCLINTON,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________________________________________________

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Seventh Circuit

____________________________________________________________________________________________________

BRIEF OF AMICI CURIAE

AMERICANS FOR PROSPERITY FOUNDATION, DREAM

CORPS JUSTICE, NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS, NISKANEN CENTER,

RIGHT ON CRIME, THE R STREET INSTITUTE, AND

THE SENTENCING PROJECT IN SUPPORT OF

PETITIONER

————

JEFFREY T. GREEN

Co-Chair, AMICUS

COMMITTEE

NATIONAL ASSOCIATION

OF CRIMINAL DEFENSE

LAWYERS

1600 L Street, N.W.

Washington, D.C. 20036

(202) 872-8600

jgreen@sidley.com

MICHAEL PEPSON*

AMERICANS FOR

PROSPERITY FOUNDATION

1310 N. Courthouse Road,

Ste. 700

Arlington, VA 22201

(571) 329-4529

mpepson@afphq.org

Counsel for Amici Curiae

June 30, 2022

*Counsel of Record

TABLE OF CONTENTS

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

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

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

Summary of Argument ................................................. 4

Argument ....................................................................... 7

II.

Acquitted-Conduct Sentencing Cannot be

Squared With the Sixth Amendment ................. 7

The Sixth Amendment Requires Juries

Find All Facts Legally Necessary to Justify

a Defendant’s Sentence ............................... 7

Reliance on Acquitted Conduct to Triple Mr.

McClinton’s Sentence Violated His Sixth

Amendment Rights .................................... 10

Use of Acquitted Conduct at Sentencing Guts the

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

The Reasonable Doubt Standard Protects

Against Wrongful Punishment ................. 15

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 .................................................... 20

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

TABLE OF AUTHORITIES

Page(s)

Cases

Addington v. Texas,

441 U.S. 418 (1979) ...................................... 16, 17

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................... 8, 9, 10

Blakely v. Washington,

542 U.S. 296 (2004) .................................. 8, 10, 19

Coffin v. United States,

156 U.S. 432 (1895) .............................................15

Gall v. United States,

552 U.S. 38 (2007) ...............................................11

Hester v. United States,

139 S. Ct. 509 (2019) .............................................9

In re Winship,

397 U.S. 358 (1970) .................... 15, 16, 17, 18, 19

Jones v. United States,

574 U.S. 948 (2014) .................................. 9, 11, 13

Lafler v. Cooper,

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

Lego v. Twomey,

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

iii

Neder v. United States,

527 U.S. 1 (1999) ...................................................8

People v. Beck,

939 N.W.2d 213 (Mich. 2019) .............................23

Ring v. Arizona,

536 U.S. 584 (2002) ...............................................9

Rita v. United States,

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

Speiser v. Randall,

357 U.S. 513 (1958) .............................................18

State v. Melvin,

258 A.3d 1075 (N.J. 2021) ........................... 16, 23

United States v. Baylor,

97 F.3d 542 (D.C. Cir. 1996) ........................ 13, 14

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015).......... 13, 14, 22, 24

United States v. Booker,

543 U.S. 220 (2005) ...................................... 12, 17

United States v. Brown,

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

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) ....................... 13, 23

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005) ...............24

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) ............. 13, 14, 21

United States v. Fatico,

458 F. Supp. 388 (E.D.N.Y. 1978) ......................17

United States v. Haymond,

139 S. Ct. 2369 (2019) .................................. 10, 19

United States v. Jones,

863 F. Supp. 575 (N.D. Ohio 1994) ............. 21, 22

United States v. Lasley,

832 F.3d 910 (8th Cir. 2016) ..............................13

United States v. Mercado,

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

United States v. O’Brien,

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

United States v. Restrepo,

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

United States v. Sabillon-Umana,

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

United States v. Scheiblich,

346 F. Supp. 3d 1076 (S.D. Ohio 2018) ...... 21, 24

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008)...................... 23, 24

United States v. St. Hill,

768 F.3d 33 (1st Cir. 2014) .................................21

United States v. Watts,

519 U.S. 148 (1997) ................................ 16, 23, 24

United States v. White,

551 F.3d 381 (6th Cir. 2008) ....... 7, 12, 13, 22, 23

Constitution

U.S. Const. Art. III, § 2 ..............................................8

U.S. Const. amend. VI ...............................................8

Statutes

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

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

18 U.S.C. § 3553(a) ...................................................11

18 U.S.C. § 3661 ..........................................................5

Guidelines Provisions

U.S.S.G. § 1B1.3 ..........................................................5

U.S.S.G. § 5H1.1 .......................................................11

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) ............................20

C.M.A. McCauliff,

Burdens of Proof: Degrees of Belief,

Quanta of Evidence, or Constitutional

Guarantees?,

35 Vand. L. Rev. 1293 (1982) .............................18

Eang Ngov,

Judicial Nullification of Juries: The Use

of Acquitted Conduct at Sentencing,

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

Federalist No. 83.....................................................8, 9

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 ............................................................. 7, 22

Vikrant P. Reddy & Jordan Richardson,

Why the Founders Cherished the Jury,

31 Fed. Sent. R. 316 (2019) ..............................7, 8

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

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

improvements to the criminal justice system that

enhance public safety and ensure the protection of

constitutional rights. To be clear, AFPF believes what

Petitioner did and was convicted of is deserving of

punishment. But AFPF also 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.

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

committed to closing prison doors and opening doors

of opportunity. Our organization works across the

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.

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.

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 and boasts a nationwide

membership of many thousands of direct members

and up to 40,000 with affiliates. NACDL’s members

include private criminal defense lawyers, public

defenders, military defense counsel, law professors,

and judges. It 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 has repeatedly filed amicus briefs before

this Court on the use of acquitted conduct at

sentencing. NACDL’s members practice daily in

federal criminal courts throughout the country and

have long argued that the use of acquitted conduct is

an anathema to our jury trial system. That is not only

because sentencing on the basis of facts the jury did

not find directly contravenes important Fifth and

Sixth Amendment rights, but also because it undoes

the hard work of the good citizens on the jury who

have fulfilled an important duty to our society. Any of

us who have sat on a jury would be appalled to later

learn (as some jurors, in fact, are) that our divided

findings of acquittal and guilt on separate counts

meant nothing at sentencing because our counts of

acquittal are linguistically transmogrified into

“relevant conduct.”

The Niskanen Center works to advance an open

society by active engagement with the exchange of

ideas, direct engagement in the policymaking process,

and through the courts. Niskanen believes the

government has a duty to protect people from violence

and secure property from theft and destruction; and a

corresponding duty to affirm the rule of law and

respect due process, including the longstanding

principle that the government must prove beyond

reasonable doubt every element of a criminal offense

before imposing punishment for that offense.

Right on Crime is a national campaign of the Texas

Public Policy Foundation, a non-profit, non-partisan

research institute whose mission is to promote and

defend liberty, personal responsibility, and free

enterprise. Right on Crime supports conservative

solutions for reducing crime, restoring victims,

reforming offenders, and lowering taxpayer costs. It

advocates on behalf of criminal sentencing policies

that are fair, effective, and consistent with

constitutional safeguards.

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.

The Sentencing Project is a national nonprofit

organization established in 1986 to engage in public

policy research and education on criminal justice

reform. The Sentencing Project advocates for effective

and humane responses to crime that minimize

imprisonment and criminalization of youth and adults

by promoting racial, ethnic, economic, and gender

justice. Through research, education, advocacy, and

participating as an amicus in court cases, The

Sentencing Project advances fair and effective

sentencing policies.

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 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

functionally 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, many lower

courts have mistakenly overread this Court’s per

curiam decision in Watts to permit sentencing judges

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.

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 it is more

likely than not 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. And, given

the extremely broad nature of federal sentencing, this

allows acquitted conduct to dramatically increase the

term of incarceration.

That is exactly what happened here. Based on the

charges Mr. McClinton was convicted of, and facts

found by the jury, his offense level was 23, and his

Guidelines range would have been 57–71 months. But

because the district court included the acquitted

conduct in calculating Mr. McClinton’s offense level it

skyrocketed to level 43 based on the same facts the

jury failed to find have been proven, yielding a

sentence of 228 months in prison. See Pet. 7–9; App.

3a. The district court sentenced him to 228 months by,

in essence, overruling the jury’s decision.

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

on its head by allowing judges to functionally 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 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. This should not

be allowed to stand. And this case presents an ideal

vehicle for correcting this injustice. See App. 4a–5a

(“McClinton’s counsel advocated thoroughly by

preserving this issue for Supreme Court review.”).

ARGUMENT

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

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)

(Merritt, 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

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.” 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

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). “[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); see also Blakely, 542

U.S. at 306–07 (“The jury could not function as circuit

breaker in the State’s machinery of justice if it were

relegated to making a determination that the

defendant at some point did something wrong[.]”).

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 Acquitted Conduct to

Triple Mr. McClinton’s Sentence

Violated His Sixth Amendment Rights.

The district court’s reliance on conduct a jury

acquitted Mr. McClinton of dramatically increased

both his Guidelines range and actual sentence. Had

the district court sentenced him to 228 months (19

years) when the Guidelines range was set at 57–71

months (less than 6 years)—as it would have been

sans the acquitted conduct—the sentence imposed in

this case would likely be substantively unreasonable.

See Pet. 28–29. 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. See Pet. 9, 28–29;

see also U.S.S.G. § 5H1.1 (age). See generally Gall v.

United States, 552 U.S. 38, 50 (2007) (the greater the

variance, the more compelling the justification must

be).

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

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.2 See id. at 366 (Stevens, J., joined

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

hypothetical case should be decided if and when it

“[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).

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.”3 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

authorized range based on facts the judge finds

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

“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). So

too here. “After transfer to adult court,” a jury found

Petitioner guilty of robbing a CVS. App. 2a–3a. But

“[t]he jury found him not guilty of the indicted crimes

of robbery of [Mr.] Perry [an accomplice] . . . , and

causing death while using a firearm during and in

relation to the robbery of [Mr.] Perry[.]” App. 3a.

Nonetheless, “[a]t sentencing, the district court

concluded, using a preponderance of the evidence

standard, that [Mr.] McClinton was responsible for

[Mr.] Perry’s murder. The district court judge

therefore enhanced [Mr.] McClinton’s offense level

from 23 to 43[.]” App. 3a. That was error of

3 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[.]”).

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

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

specially concurring). Cf. App. 3a–5a. 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.” 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).

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

“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:

[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

value

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); see also State

v. Melvin, 258 A.3d 1075, 1092 (N.J. 2021) (“To permit

the re-litigation of facts in a criminal case under the

lower preponderance . . . standard would render the

jury’s role in the criminal justice process null[.]”). “The

heavy 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.”).4 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

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).

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,

4 “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.

Nonetheless, Watts has caused confusion in the lower courts for

many years.

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

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 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 (b)

allowing a judge to effectively overrule a unanimous

jury acquittal. See also Blakely, 542 U.S. at 306. But

that is what happened to Mr. McClinton.

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.5

5 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.

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

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.6 See also Eang Ngov,

Judicial Nullification of Juries: The Use of Acquitted

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

(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

6 Judge Barkett has argued that “[w]hen a sentencing judge finds

facts that could, in themselves, constitute entirely free-standing

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).

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

drastically

lengthened sentence.”7 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

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

7 That is exactly the case here. See Pet. 3–4, 24–25, 30–31; App.

3a.

longstanding power of mitigation, a close relative of

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

(Merritt, 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 Melvin,

258 A.3d at 1094 (“Fundamental fairness simply

cannot let stand the perverse result of allowing in

through the back door at sentencing conduct that the

jury rejected at trial.”); People v. Beck, 939 N.W.2d

213, 227 (Mich. 2019) (Viviano, J., concurring).

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 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).8 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

8 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).

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[.]”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 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.

McClinton’s Petition.

Respectfully submitted,

JEFFREY T. GREEN

Co-Chair, NACDL

AMICUS COMMITTEE

1501 K Street N.W.

Washington, D.C. 20005

(202) 736-8291