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

Case No. 21-1557

In the Supreme Court of the United States

___________

DAYONTA MCCLINTON, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_________

On Petition for a Writ of Certiorari to the

Court of Appeals for the Seventh Circuit

_________

BRIEF OF PROFESSOR DOUGLAS BERMAN AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

_________

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212 872 9800

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

July 8, 2022

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, Colorado 80202

303 830 1776

keith.bradley@squirepb.com

Counsel for Amicus

Professor Douglas

Berman

(i)

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... ii

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT................................... 1

ARGUMENT ............................................................. 4

I.

As Members of this Court and Lower

Courts Recognize, the Historic Rights

and Protections of Jury Trials are

Gravely Undermined by Sentences

Enhanced Based on Jury-Rejected

Facts. ............................................................... 6

II.

This Case Provides an Effective Setting

to Review Constitutionally Problematic

Sentencing Practices. ................................... 13

III.

By Empowering Prosecutors and

Impacting All Indictments and Pleas,

Acquitted Conduct Sentencing Impacts

the Operation of the Entire Federal

Justice System. ............................................. 17

CONCLUSION ........................................................ 22

(ii)

TABLE OF AUTHORITIES

Cases

Page(s)

Federal Cases

Alleyne v. United States,

570 U.S. 99 (2013)..................................... 3, 7, 15

Apprendi v. New Jersey,

530 U.S. 466 (2000).................................... passim

Batson v. Kentucky,

476 U.S. 79 (1986)............................................... 6

Blakely v. Washington,

542 U.S. 296 (2004).................................... passim

Booker v. United States,

543 U.S. 220 (2005).................................... passim

Duncan v. Louisiana,

391 U.S. 145 (1968)....................................... 7, 17

Gall v. United States,

552 U.S. 38 (2007)............................................. 13

Jones v. United States,

526 U.S. 227 (1999)......................................... 6, 9

Jones v. United States,

574 U.S. 948 (2014)....................................... 9, 22

Missouri v. Frye,

566 U.S. 134 (2012)........................................... 19

(iii)

Missouri v. Hunter,

459 U.S. 359 (1983)........................................... 20

Oregon v. Ice,

555 U.S. 160 (2009)........................................... 16

Peugh v. United States,

569 U.S. 530 (2013)........................................... 14

Ramos v. Louisiana,

140 S. Ct. 1390 (2020)......................................... 7

Rita v. United States,

551 U.S. 338 (2007)........................................... 14

Shinn v. Martinez-Ramirez,

595 U.S. ___, 142 S. Ct. 1718 (2022) ................ 21

Singer v. United States,

380 U.S. 24 (1965)............................................... 6

Southern Union Co. v. United States,

567 U.S. 343 (2012)....................................... 7, 12

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) ................. 9, 10, 18

United States v. Brown,

892 F.3d 385 (D.C. Cir. 2018) ............................. 9

United States v. Canania,

532 F.3d 764 (8th Cir. 2008)..............8, 10, 21, 22

United States v. Carvajal,

2005 U.S. Dist. LEXIS 3076 (S.D.N.Y.

Feb. 17, 2005) .................................................... 11

(iv)

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005) ......... 8, 11

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006)..................... 8, 10

United States v. Gaudin,

515 U.S. 506 (1995)......................................... 1, 6

United States v. Haymond,

139 S. Ct. 2369 (2019)......................................... 3

United States v. Huerta-Rodriguez,

355 F. Supp. 2d 1019 (D. Neb. 2005) ........ 11, 16

United States v. Ibanga,

454 F. Supp. 2d 532 (E.D. Va. 2006) ............ 8, 11

United States v. Jones,

744 F.3d 1362 (D.C. Cir. 2014) ......................... 22

United States v. Martinez,

769 Fed. App’x. 12 (2d Cir. 2019)

(Pooler, J., concurring)...................................... 10

United States v. McClinton,

23 F.4th 732 (7th Cir. 2022) ............................. 11

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007)......................... 8, 10

United States v. Papakee,

573 F.3d 569 (8th Cir. 2009) .............................. 8

United States v. Pimental,

367 F. Supp. 2d 143 (D. Mass. 2005) ........... 8, 11

(v)

United States v. Safavian,

461 F. Supp. 2d 76 (D.D.C. 2006) ....................... 8

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008) ............................. 9

United States v. v. Fitzpatrick,

32 F.4th 644 (7th Cir. 2022) ............................. 15

United States v. Watts,

519 U.S. 148 (1997)............................................. 8

Williams v. Florida,

399 U.S. 78 (1970)............................................... 6

State Cases

Nelson v. Colorado

137 S. Ct. 1249 (2017)......................................... 8

People v. Beck,

939 N.W.2d 213 (Mich. 2019) ........................... 12

State v. Cote,

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

State v. Marley,

364 S.E.2d 133 (N.C. 1988) .............................. 12

State v. Melvin,

258 A.3d 1075 (N.J. 2021) ................................ 12

(vi)

Other Authorities

An Offer You Can’t Refuse: How US Federal

Prosecutors Force Drug Defendants to

Plead Guilty, Human Rights Watch 7890 (December 5, 2013)

(https://www.hrw.org/report/2013/12/05/

offer-you-cant-refuse/how-us-federalprosecutors-force-drug-defendantsplead#) ............................................................... 19

Barry L. Johnson, If at First You Don’t

Succeed—Abolishing the Use of

Acquitted Conduct in Guidelines

Sentencing, 75 N.C.L. Rev. 153, 180

(1996) ................................................................. 21

Clark Neily, A Distant Mirror: AmericanStyle Plea Bargaining Through the Eyes

of a Foreign Tribunal, 27 Geo. Mason L.

Rev. 719, 730 (2020).......................................... 18

Erik Lillquist, The Puzzling Return of Jury

Sentencing: Misgivings About Apprendi,

82 N.C. L. Rev. 621 (2004) ................................ 20

Jim McElhatton, “Juror No. 6” stirs debate

on sentencing, The Washington Times

(May 3, 2009)

https://www.washingtontimes.com/news/

2009/may/3/juror-no-6-questions-rulesof-sentencing/ .................................................... 22

Jim McElhatton, A $600 drug deal, 40 years

in prison, The Washington Times (Jun

29, 2008) ............................................................ 22

(vii)

U.S. Sentencing Commission, 2021

Sourcebook of Federal Sentencing

Statistics, Table 29 (2021)

(https://www.ussc.gov/sites/default/files/

pdf/research-and-publications/reportsandsourcebooks//2021_Annual_Report_and_

Sourcebook.pdf .................................................. 14

INTEREST OF AMICUS CURIAE1

Amicus is a legal scholar who teaches, conducts

research, and practices in the fields of criminal law

and sentencing in the United States.1 Professor

Berman is the co-author of the casebook Sentencing

Law and Policy: Cases, Statutes and Guidelines

(https://www.aspenpublishing.com/

DemleitnerSentencingLawAndPolicy5) and has served as an

editor

of

the Federal

Sentencing

Reporter (https://online.ucpress.edu/fsr) for more

than a decade. Professor Berman is also the sole

creator

and

author

of

the

widely-read

blog, Sentencing Law and Policy, which this Court

and numerous lower courts have cited. He has a

professional interest in ensuring that federal

sentencing law is interpreted and applied in a manner

that coherently advances its purposes and is

consistent with longstanding constitutional principles

and with contemporary function in the criminal law.

SUMMARY OF ARGUMENT

Dayonta McClinton, upon being accused by

federal authorities of various crimes, invoked

“constitutional protections of surpassing importance,”

Apprendi v. New Jersey, 530 U.S. 466, 476 (2000), by

exercising trial rights “designed ‘to guard against a

spirit of oppression and tyranny on the part of the

rulers.’” United States v. Gaudin, 515 U.S. 506, 510–

1 No counsel for a party authored this brief in whole or in

part. No person or entity, other than amicus curiae, its members,

or its counsel, made a monetary contribution to the preparation

or submission of this brief. The parties have consented to this

filing.

2

11 (1995) (citation omitted). Specifically, McClinton

opted to proceed to trial after having been indicted on

two distinct sets of crimes: the robbery of a CVS

pharmacy and the subsequent murder of another

robber involved in that pharmacy robbery. At trial, a

unanimous jury convicted McClinton of the two CVS

robbery charges he faced and acquitted him of the two

murder charges he faced.

Prior to McClinton’s sentencing on the CVS

robbery convictions, the Probation Office prepared a

presentencing report that calculated his applicable

Guidelines sentencing range at 57-71 months of

imprisonment. But federal prosecutors, eager to see

McClinton punished for murder notwithstanding his

acquittal on those charges, argued to the Probation

Office that it must calculate the Guidelines range

based on a Guidelines cross-reference relying on juryrejected facts regarding the murder. A revised

presentence report, incorporating the jury-rejected

facts that McClinton was a murderer, recalculated

McClinton’s recommended sentence under the

Guidelines to be life without the possibility of parole.

At sentencing, prosecutors and the judge relied

heavily on the recalculated Guidelines range of life

that was based on jury-rejected facts. Stressing the

high Guidelines range, prosecutors emphasized that

they sought a sentence of only 324 months. After

rejecting McClinton’s claim that his Guidelines range

should not be dramatically enhanced by jury-rejected

facts, the sentencing judge stressed that he was

granting a “downward variance” by imposing a

sentence of 228 months.

3

This case thus raises the oft-recurring issue of

whether the Constitution and federal sentencing law

limits reliance on jury-rejected facts for dramatic

Guidelines enhancements and impositions of lengthy

prison terms. As McClinton’s petition demonstrates,

guidance from this Court has repeatedly been sought

on this enduring question and resolution of this issue

is overdue.

This Court has repeatedly extolled and stressed

the importance of a defendant’s right to have a jury

decide facts essential to punishment: “Only a jury,

acting on proof beyond a reasonable doubt, may take

a person’s liberty. That promise stands as one of the

Constitution’s most vital protections against

arbitrary government.” United States v. Haymond,

139 S. Ct. 2369, 2373 (2019) (plurality op.); accord

Alleyne v. United States, 570 U.S. 99, 114 (2013);

Blakely v. Washington, 542 U.S. 296, 306 (2004);

Apprendi, 530 U.S. at 477. But when the Guidelines

and a judge rely on jury-rejected facts to significantly

increase a sentence, the jury trial “promise” becomes

empty and this “vital” protection against the

government becomes illusory.

Problematically, many lower courts continue to

read this Court’s jurisprudence to call for treating

acquitted-conduct fact-finding at sentencing as

indistinguishable from any other form of fact-finding

at sentencing. But if oft-repeated statements about

the importance of Fifth and Sixth Amendment trial

rights as a limit on government power are to have any

real purchase and enduring meaning, the Court

should grant review in this case to articulate limits on

judicial authority to dramatically increase a sentence

based on jury-rejected facts.

4

As McClinton’s petition makes clear, this case

provides a particularly stark example of how sentence

enhancements based on jury-rejected facts undermine

the jury’s constitutionally-defined role in our criminal

system and the protections of the Fifth and Sixth

Amendments. After a trial resulted in jury acquittals

on the most serious charges against McClinton,

prosecutors urged and the judge embraced factual

determinations that directly contradicted those of the

jury, and those findings elevated the Guidelines

benchmark from roughly five years to life in prison.

That dramatic sentence enhancement based on juryrejected facts provided the foundation for prosecutors

to recommend a near 30-year term and for a judge to

impose a near 20-year prison term. This kind of use

of acquitted conduct at sentencing has long garnered

ample criticism for eviscerating a jury’s fundamental

role, and it is time for this Court to clarify that the

Constitution and federal sentencing law limits

judicial reliance on jury-rejected facts. For these

reasons, the Court should grant Petitioner’s petition

for a writ of certiorari.

ARGUMENT

After a full and fair trial, the people exercised

suffrage in this case by unanimously voting to acquit

Dayonta McClinton of the most serious charges

brought against him by federal officials. But, perhaps

displeased that the citizenry here functioned “as [a]

circuitbreaker in the State’s machinery of justice,”

Blakely, 542 U.S. at 306, federal prosecutors at

sentencing asserted that Guidelines calculations

could and should be based on a judicial factual

inquisition with no regard given to the jury’s verdict.

5

Such disregard of the jury’s findings suggests

prosecutorial and judicial views of the Sixth

Amendment as a mere procedural formality, even

though this Court has repeatedly emphasized that the

reach and application of jury trial rights should not be

driven by “Sixth Amendment formalism, but by the

need to preserve Sixth Amendment substance.”

Booker v. United States, 543 U.S. 220, 237 (2005).

Failing to recognize the constitutional problems

resulting from Guidelines sentencing enhancements

based on alleged offense “facts” which were expressly

rejected by the jury verdict, the district judge

embraced the jury-rejected allegations that

McClinton was involved in greater criminality. In so

doing, the sentencing judge calculated McClinton to

have a Guidelines range of life, the exact same range

he would have faced if convicted of all charges. The

people’s role in determining the truth of the

prosecutors’ accusations was ignored; McClinton’s

jury acquittal on major charges was rendered entirely

irrelevant to the calculated Guidelines range of life

and the lengthy prison sentence he received.

When acquittals carry no real sentencing

consequences, prosecutors have nothing to lose (and

much to gain) from bringing multiple charges even

when they might expect the jury to ultimately reject

many such charges. The trial, after all, functions then

merely as just a first bite at the apple, offering

prosecutors a chance to present their case to the jury

and then, even if unsuccessful, present it again to the

sentencing judge so long as the jury finds the

defendant guilty of at least one charge.

6

This case concerns a uniquely serious and

dangerous erosion of Fifth and Sixth Amendment

substance because the Guidelines range was

dramatically enhanced by facts clearly rejected by the

jury. This Court has stressed the need “to give

intelligible content to the right of [a] jury trial,”

Blakely, 542 U.S. at 305, and that demands

differentiating between cases in which Guidelines

ranges are calculated based on facts never contested

by a jury and cases such as the one here in which

Guidelines ranges are calculated to be dramatically

higher based on facts expressly rejected by a jury.

When a federal judge significantly enhances a prison

sentence based expressly on allegations indisputably

rejected by a jury verdict of not guilty, the jury trial

right is nullified.

I.

As Members of this Court and Lower

Courts Recognize, the Historic Rights and

Protections of Jury Trials are Gravely

Undermined by Sentences Enhanced

Based on Jury-Rejected Facts.

This Court has repeatedly emphasized that the

jury-trial right is “clearly intended to protect the

accused from oppression by the Government.” Singer

v. United States, 380 U.S. 24, 31 (1965); see also

Williams v. Florida, 399 U.S. 78, 100 (1970); Batson

v. Kentucky, 476 U.S. 79, 86 (1986) (the jury-trial

right “safeguard[s] a person accused of crime against

the arbitrary exercise of power by prosecutor or

judge”); Gaudin, 515 U.S. at 510; Jones v. United

States, 526 U.S. 227, 244–48 (1999); Apprendi, 530

U.S. at 477 (the jury “guard[s] against a spirit of

oppression and tyranny on the part of rulers,” and

7

acts “as the great bulwark of our civil and political

liberties” (citation omitted)); Blakely, 542 U.S. at 305–

06; Booker, 543 U.S. at 237–39; Alleyne, 570 U.S. at

114 (noting “the historic role of the jury as an

intermediary between the State and criminal

defendants”). This Court has long regarded the jurytrial right as an “inestimable safeguard” protecting a

defendant “against the corrupt or overzealous

prosecutor and against the compliant, biased, or

eccentric judge.” Duncan v. Louisiana, 391 U.S. 145,

156 (1968). As stressed quite recently, jury trials are

“fundamental to the American scheme of justice.”

Ramos v. Louisiana, 140 S. Ct. 1390, 1397 (2020)

(quoting Duncan, 391 U.S. at 148–50).

Yet these oft-repeated proclamations about the

importance of “the jury’s historic role as a bulwark

between the State and the accused,” Southern Union

Co. v. United States, 567 U.S. 343, 350 (2012), ring

disturbingly hollow for McClinton and other

defendants when, after being vindicated by jury

verdicts of not guilty, prosecutors will still be

permitted to seek, and judges will still be permitted

to calculate, enhanced Guidelines ranges based on the

very same criminal allegations the jury expressly

rejected. Acquittals, in these cases, are mere formal

matters; acquittals in name only with no meaningful

consequence or limit on the state’s effort to punish

based on the very allegation the jury unanimously

rejected. McClinton and other defendants subject to

sentences enhanced by acquitted conduct are left to

wonder just what kind of “bulwark” or “safeguard” the

Fifth and Sixth Amendments truly provide when

prosecutors and judges can effectively disregard jury

findings at sentencing. Indeed, McClinton and other

8

like defendants must find jarring that this Court in

Nelson v. Colorado ruled that after a jury acquittal

“Colorado may not presume a person . . . nonetheless

guilty enough for monetary exactions,” 137 S. Ct.

1249, 1256 (2017) (emphasis in original), and yet

federal judges, after jury acquittals, may still find

defendants “guilty enough” for a massive increase in

liberty deprivation in the form of prison time. Cf. id.

at 1256 n.9 (explaining that the “presumption of

innocence unquestionably” constitutes a “principle of

justice so rooted in the traditions and conscience of

our people as to be ranked as fundamental”).

Recognizing the fundamental tension between

sentence enhancements based on acquitted conduct

and giving real meaning to jury trial rights, Justices

of this Court and lower court judges have described

the practice of increasing sentences based on juryrejected facts as, among other things, “repugnant,”

“Kafka-esque,”

“uniquely

malevolent,”

and

“pernicious.” See United States v. Watts, 519 U.S. 148,

169–70 (1997) (Stevens, J., dissenting); United States

v. Ibanga, 454 F. Supp. 2d 532, 536 (E.D. Va. 2006)

(Kelley, J.); United States v. Canania, 532 F.3d 764,

776–77 (8th Cir. 2008) (Bright, J., concurring); United

States v. Papakee, 573 F.3d 569, 578 (8th Cir. 2009)

(Bright, J., concurring); see also United States v.

Mercado, 474 F.3d 654, 663 (9th Cir. 2007) (Fletcher,

J., dissenting); United States v. Faust, 456 F.3d 1342,

1349 (11th Cir. 2006) (Barkett, J., concurring); United

States v. Safavian, 461 F. Supp. 2d 76, 83 (D.D.C.

2006) (Friedman, J.); United States v. Coleman, 370

F. Supp. 2d 661, 671 (S.D. Ohio 2005) (Marbley, J.);

United States v. Pimental, 367 F. Supp. 2d 143, 152

(D. Mass. 2005) (Gertner, J.).

9

Notably,

Justice

Kavanaugh

repeatedly

recognized problems with acquitted conduct

enhancements while serving as a Circuit Judge. In

2008, then-Judge Kavanaugh rightly described

reliance on acquitted conduct as “unfair,” United

States v. Settles, 530 F.3d 920, 923–24 (D.C. Cir. 2008)

(Kavanaugh, J.), and then later called it “a dubious

infringement of the rights to due process and to a jury

trial.” United States v. Bell, 808 F.3d 926, 928 (D.C.

Cir. 2015) (Kavanaugh, J. concurring). Tellingly,

then-Judge Kavanaugh suggested the Supreme Court

might see fit to “fix” this problem because there were

“good reasons to be concerned about the use of

acquitted conduct at sentencing, both as a matter of

appearance and as a matter of fairness.” United

States v. Brown, 892 F.3d 385, 415 (D.C. Cir. 2018)

(Kavanaugh, J., dissenting in part).

The late-Justice Scalia, joined by Justices

Thomas and Ginsburg, dissented from a denial of

certiorari in a case raising this issue in Jones v.

United States, 574 U.S. 948, 948–49 (2014). Justice

Scalia stressed that he found a judge’s fact-finding

which significantly increased a drug defendant’s

sentence to be especially concerning when based on

acquitted conduct. In his view, the Jones case was “a

particularly appealing case” for review “because not

only did no jury convict these defendants of the

offense the sentencing judge thought them guilty of,

but a jury acquitted them of that offense.” Id.

(emphasis in original).

Even in the courts of appeals that have read this

Court’s precedents to allow use of acquitted conduct

to enhance sentences, judges continue to criticize the

practice as unconstitutional and unjust. See e.g.,

10

United States v. Martinez, 769 Fed. App’x. 12, 17 (2d

Cir. 2019) (Pooler, J., concurring) (stating that the

district court’s practice of using acquitted conduct to

enhance a defendant’s sentence is “fundamentally

unfair” and runs afoul of the Sixth Amendment);

Canania, 532 F.3d at 776 (Bright, J., concurring)

(“[T]he consideration of ‘acquitted conduct’ to enhance

a defendant’s sentence is unconstitutional.”); Faust,

456 F.3d at 1349 (Barkett, J., specially concurring) (“I

strongly believe . . . that sentence enhancements

based on acquitted conduct are unconstitutional

under the Sixth Amendment, as well as the Due

Process Clause of the Fifth Amendment.”); Mercado,

474 F.3d at 658 (Fletcher, J., dissenting) (“Reliance on

acquitted conduct in sentencing diminishes the jury’s

role and dramatically undermines the protections

enshrined in the Sixth Amendment. Both Booker and

the clear import of the Sixth Amendment prohibit

such a result.”). As aptly noted by Judge Millett of

the D.C. Circuit in describing the evisceration of the

jury bulwark, “when the central justification the

government offers for such an extraordinary increase

in the length of imprisonment is the very conduct for

which the jury acquitted the defendant, that libertyprotecting bulwark becomes little more than a speed

bump at sentencing.” Bell, 808 F.3d at 929 (Millett,

J., concurring); see also id. at 927 (Kavanaugh, J.,

concurring) (“I share Judge Millett’s overarching

concern about the use of acquitted conduct at

sentencing”). And the court below in this case noted

that McClinton’s challenge to acquitted conduct

enhancements “has garnered increasing support

among many circuit court judges and Supreme Court

Justices, who in dissenting and concurring opinions,

have questioned the fairness and constitutionality of

11

allowing courts to factor acquitted conduct into

sentencing calculations.” United States v. McClinton,

23 F.4th 732, 735 (7th Cir. 2022).

Likewise, more than a few district courts have

concluded that sentencing based upon conduct for

which

the

defendant

was

acquitted

is

unconstitutional. See, e.g., Coleman, 370 F. Supp. 2d

at 671 (Marbley, J.) (“[T]he jury’s central role in the

criminal justice system is better served by respecting

the jury’s findings with regard to authorized and

unauthorized conduct.” (emphasis in original));

Pimental, 367 F. Supp. 2d at 152 (Gertner, J.) (“To

consider acquitted conduct trivializes ‘legal guilt’ or

‘legal innocence’—which is what a jury decides—in a

way that is inconsistent with the tenor of the recent

case law.”); Ibanga, 454 F. Supp. 2d at 539 (Kelley, J.)

(“Punishing defendant Ibanga for his acquitted

conduct would have contravened the statutory goal of

furthering respect for the law and would have

resulted in unjust punishment for the offense for

which he was convicted.”); United States v. HuertaRodriguez, 355 F. Supp. 2d 1019, 1028 (D. Neb. 2005)

(Bataillon, J.) (“[T]he court finds that it can never be

‘reasonable’ to base any significant increase in a

defendant’s sentence on facts that have not been

proved beyond a reasonable doubt.”); United States v.

Carvajal, 2005 U.S. Dist. LEXIS 3076, at *10–11

(S.D.N.Y. Feb. 17, 2005) (Hellerstein, J.) (“I decline[]

to accept the Government’s argument that,

nonwithstanding the jury’s verdict that Carvajal was

not guilty of actually distributing crack, I should

nevertheless consider that the acts necessary for

completing the substantive crime were proved by a

preponderance of the evidence.”).

12

Notably, a number of state supreme courts have

recognized, both recently and even before this Court’s

modern Apprendi jurisprudence, the serious

constitutional problems with enhancing a sentence

based on acquitted conduct. See, e.g., People v. Beck,

939 N.W.2d 213, 226 (Mich. 2019); State v. Cote, 530

A.2d 775 (N.H. 1987) (“We think it disingenuous at

best to uphold the presumption of innocence until

proven guilty. . . while at the same time punishing a

defendant based upon charges in which that

presumption has not been overcome.”); State v.

Marley, 364 S.E.2d 133 (N.C. 1988) (concluding that

“due process and fundamental fairness precluded the

trial court from aggravating defendant’s” sentence

with acquitted conduct); see also State v. Melvin, 258

A.3d 1075, 1078 (N.J. 2021) (relying on New Jersey

Constitution to hold “that fundamental fairness

prohibits courts from subjecting a defendant to

enhanced sentencing for conduct as to which a jury

found that defendant not guilty”). These rulings,

which are often grounded in both the Fifth and

Fourteenth Amendments’ guarantee of due process

and the Sixth Amendment’s jury trial right, recognize

and confront the fundamental problems with allowing

prosecutors and judges to nullify jury findings at

sentencing and render jury trials “a mere preliminary

to a judicial inquisition into the facts of the crime the

State actually seeks to punish.” Blakely, 542 U.S. at

307.

As these opinions show, for the judicial system to

demonstrate genuine respect for the “jury’s historic

role as a bulwark between the State and the accused,”

Southern Union Co., 567 U.S. at 350, the Constitution

and reasonableness review must place some limits on

13

judicial reliance on jury-rejected facts in federal

sentencings.

II.

This Case Provides an Effective Setting to

Review Constitutionally Problematic

Sentencing Practices.

The Court in Booker found unconstitutional under

the Fifth and Sixth Amendments a federal sentencing

system in which jury-free judicial fact-finding

determined the mandatory Guidelines sentencing

range. In an effort to remedy an unconstitutional

circumvention of traditional trial rights, the Booker

Court adopted a remedy making the Guidelines

advisory and providing for reasonableness review of

sentences upon appeal. See 543 U.S. at 264. In so

doing, Booker reaffirmed this Court’s earlier holding

in Apprendi that “[a]ny fact (other than a prior

conviction) which is necessary to support a sentence

exceeding the maximum authorized by the facts

established by a plea of guilty or a jury verdict must

be admitted by the defendant or proved to a jury

beyond a reasonable doubt.” Id. (emphasis added).

This Court has since clarified the functioning of

the Booker remedy in a series of follow-up rulings that

have detailed and reiterated the Guidelines’ central

and foundational role in all federal sentencing

proceedings: (1) a district court must begin all

sentencing proceedings by calculating the applicable

Guidelines range and then use this range as “the

starting point and the initial benchmark” for its

sentencing decision-making, Gall v. United States,

552 U.S. 38, 49 (2007); (2) any major departure from

the Guidelines needs to “be supported by a more

significant justification than a minor one,” id. at 50;

14

(3) any “[f]ailure to calculate the correct Guidelines

range constitutes procedural error,” Peugh v. United

States, 569 U.S. 530, 537 (2013); and (4) on appeal, a

within-Guidelines sentence may be presumed

reasonable. Rita v. United States, 551 U.S. 338, 347

(2007). As such, the Guidelines, though advisory, still

carry “force as the framework for sentencing.” Peugh,

569 U.S. at 542.

McClinton’s case not only illustrates the real

consequences Guidelines calculations still have on a

defendant’s sentence, but also how judicial factfinding regarding jury-rejected facts can still drive

sentencing outcomes. Without fact-finding based on

the jury-rejected acquitted conduct, McClinton’s

advisory Guidelines range would have been 57-71

months. Because roughly 98% of all sentences in the

federal system are imposed within or below the

calculated range,2 it is highly unlikely the sentencing

judge in this case would have even contemplated

sentencing McClinton to even a decade of

imprisonment absent consideration of another

Guidelines range dramatically inflated by juryrejected judicial findings.

Moreover, due to the fundamental role that the

Guidelines range still plays in reasonableness review,

in order to sentence McClinton to 228 months absent

the calculation of a higher Guidelines range based on

acquitted conduct, the district judge would have had

to identify considerable aggravating individual

2

See U.S. Sentencing Commission, 2021 Sourcebook of Federal

Sentencing

Statistics,

Table

29

(2021)

(https://www.ussc.gov/sites/default/files/pdf/research-and-publications/

annual-reports-and-sourcebooks/2021/2021_Annual_Report_and_

Sourcebook.pdf)

15

circumstances to justify such a high sentence. But, by

finding and relying on alleged “facts” that the jury

expressly rejected, the judge here calculated a

Guidelines range of life. As a result, the 228-month,

below-Guidelines sentence not only could appear

presumptively reasonable on appeal, see, e.g., United

States v. v. Fitzpatrick, 32 F.4th 644, 651 (7th Cir.

2022) (explaining the “presumption of reasonableness

also extends to below-Guidelines sentences”), but it

also surely let the sentencing judge feel as though he

was sentencing leniently even though his sentence

was roughly four times as long as the Guidelines

range absent acquitted-conduct enhancements. In

other words, judicial fact-finding on acquitted conduct

allowed the district judge, functionally and formally,

to impose a much higher sentence and one that likely

would not have even been considered at sentencing

and likely would have been deemed unreasonable on

appeal.

Put another way, the judicial fact-finding here to

apply an aggravating cross-reference under the

Guidelines was indisputably and fundamentally

“essential to the punishment imposed.” Cf. Alleyne,

570 U.S. at 109-10 (Thomas, J., plurality op.)

(describing “a well-established practice of . . .

submitting to the jury, every fact that was a basis for

imposing or increasing punishment”); id. at 125

(Roberts, C.J., dissenting) (explaining a standard for

which facts must be found by a jury). Under a proper

application of Apprendi and its progeny, this process

of enhanced sentencing based on jury-rejected facts is

constitutionally unsound and violates the Fifth and

Sixth Amendments.

16

One potential means to “give intelligible content

to the right of a jury trial” in this setting, Blakely, 542

U.S. at 305–06, would be to reverse the sentence

below as unreasonable because of its undue reliance

on acquitted conduct to greatly enhance the applicable

Guidelines range and thereby serve as the only given

justification for a much longer sentence. See generally

Huerta-Rodriguez, 355 F. Supp. 2d at 1028 (“[T]he

court finds that it can never be ‘reasonable’ to base

any significant increase in a defendant’s sentence on

facts that have not been proved beyond a reasonable

doubt.”). There may be cases in which minor judicial

reliance on acquitted conduct—perhaps as the basis

for a discretionary decision to sentence at the top of a

proper Guideline range—would be “reasonable”

because it does not pose a real “threat to the jury’s

domain” or an “erosion of the jury’s traditional role.”

Oregon v. Ice, 555 U.S. 160, 169–70 (2009). But, as in

the case at bar—when judicial reliance on juryrejected facts massively increases the Guidelines

range and serves as the clear and only stated basis for

a highly elevated sentence—the sentence should be

deemed “unreasonable” because it is so much higher

than what jury-found facts support. In other words,

reasonableness review might be one means to check

and limit acquitted-conduct sentence enhancements

to ensure that the “right of jury trial [will] be

preserved, in a meaningful way guaranteeing that the

jury [will] still stand between the individual and the

power of the government.” Booker, 543 U.S. at 237.

Doing so would honor the “core concerns animating

the jury and burden-of-proof requirements,” such as

the importance of “guard[ing] against a spirit of

oppression and tyranny on the party of rulers,” and

17

establishing a “great bulwark of our civil and political

liberties.” Apprendi, 530 U.S. at 477, 490 n.16.

III.

By

Empowering

Prosecutors

and

Impacting All Indictments and Pleas,

Acquitted Conduct Sentencing Impacts

the Operation of the Entire Federal

Justice System.

Allowing

significant

acquitted-conduct

Guidelines enhancements undermines our criminal

justice system by taking liberty-protecting authority

away from the people and giving it back to the state

and its agents.

From McClinton’s and similar

defendants’ perspectives, their jury trials served not

as a mechanism to “prevent oppression by the

Government,” Duncan, 391 U.S. at 155, but rather as

prosecutors’ means to enjoy the first of two distinct

chances to convince either of two courtroom decisionmakers that a defendant should be severely punished

based on questionable accusations. Not only does this

approach degrade a fundamental constitutional right,

it also undermines confidence in the entire criminal

justice system.

It provides prosecutors with

significant benefits (and no obvious costs) from

always alleging and pursuing any and every charge at

their disposal among “the sprawling scope of most

criminal codes.”

Blakely, 542 U.S. at 311. This

circumvention of the jury’s work enables overzealous

prosecutors to run roughshod over the traditional

democratic checks of the adversarial criminal process

the Framers built into the U.S. Constitution.

Prosecutors can brazenly charge any and all offenses

for which there is a sliver of evidence, then pursue

those charges throughout trial without fear of any

18

consequences when seeking later to make out their

case to a sentencing judge. They can overcharge

defendants safe in the belief they can renew their

allegations for judicial reconsideration as long as the

jury finds that the defendant did something wrong.

This enhances prosecutorial power at each major

stage of a criminal prosecution.

First, at the outset of criminal cases, prosecutors

can allege and pursue every possible statutory charge

in order to increase plea bargaining leverage because

they know there will be no real sentencing

consequences even upon a jury acquittal on most

charges.

See Clark Neily, A Distant Mirror:

American-Style Plea Bargaining Through the Eyes of

a Foreign Tribunal, 27 Geo. Mason L. Rev. 719, 730

(2020) (“American prosecutors possess a wide array of

levers that they can—and routinely do—bring to bear

on defendants to persuade them to waive their right

to trial and simply plead guilty instead[,] . . .

[including] threatening to use uncharged or even

acquitted conduct to enhance a defendant's

sentence”). Prosecutors are functionally encouraged

to over-charge defendants, knowing that if they

obtain a conviction on at least one count, they can

“ask[] the judge to multiply a defendant’s sentence

many times over based on conduct for which the

defendant was just acquitted.” Bell, 808 F.3d at 932

(Millett. J, concurring).

Indeed, the prospect of future acquitted-conduct

Guidelines enhancements requires competent federal

defense attorneys in multi-count cases to inform their

clients that securing a jury acquittal on many charges

at trial may produce little or no Guidelines range

benefit but likely still will preclude the defendant

19

from receiving any sentencing credit for accepting

responsibility. It is little wonder plea bargaining now

“is the criminal justice system,” Missouri v. Frye, 566

U.S. 134, 144 (2012), when sentencing rules require

defense attorneys to advise clients that pleading

guilty even to the most questionable of government

charges may result in a better sentencing outcome

than if a jury were to reject those charges at a trial.

See generally An Offer You Can’t Refuse: How US

Federal Prosecutors Force Drug Defendants to Plead

Guilty, Human Rights Watch 78-90 (December 5,

2013) (https://www.hrw.org/report/2013/12/05/offeryou-cant-refuse/how-us-federal-prosecutors-forcedrug-defendants-plead#) (noting that “analysis of

trial data suggests that even defendants with strong

cases and good chances of acquittal at trial are

choosing to plead because of the enormous sentencing

benefit of doing so compared to the sentencing risks

they face should they lose at trial”).

Second, as criminal cases proceed to trial,

prosecutors can continue to pursue any and every

possible charge, knowing still that there will be no

real sentencing consequences after any jury acquittal.

Doing so, even if the evidence supporting many

charges may be weak or becomes suspect, enables

prosecutors to increase the chances that a jury will be

drawn into “making a determination that the

defendant at some point did something wrong.”

Blakely, 542 U.S. at 307. The more charges that

prosecutors pursue against a defendant at trial, the

more likely it becomes that the defendant will be

convicted on at least one. That is, “[t]he prosecution’s

ability to bring multiple charges increases the risk

that the defendant will be convicted on one or more of

20

those charges. The very fact that a defendant has

been arrested, charged, and brought to trial on

several charges may suggest to the jury that he must

be guilty of at least one of those crimes.” Missouri v.

Hunter, 459 U.S. 359, 372 (1983) (Marshall, J.

dissenting); see also Erik Lillquist, The Puzzling

Return of Jury Sentencing: Misgivings About

Apprendi, 82 N.C. L. Rev. 621, 627–28 (2004) (“The

‘compromise’ and ‘decoy’ effects predict that when the

jury is presented with more than one guilty option,

the percentage of defendants found not guilty of both

offenses will be lower than the percentage of

defendants found not guilty when there is just one

charge.”). In this arrangement, thanks to acquitted

conduct sentencing, the prosecution need not really

prove, beyond a reasonable doubt, “the facts of the

crime the State actually seeks to punish.” Blakely,

542 U.S. at 306–07. So long as it secures a conviction

on something—even if only a relatively minor

charge—the prosecution can achieve its intended

sentence simply by persuading the judge of the

defendant’s conduct by a preponderance of the

evidence.

Third, as criminal cases reach sentencing, and

after having enjoyed the benefit and luxury of the jury

trial serving as a dress rehearsal, prosecutors can and

often will become even more aggressive in the

presentation of offense allegations and related

accusations. As was true in this case, prosecutors can

persistently tell judges (and the authors of a

presentence report) that they are duty-bound to

disregard any and all jury acquittals, rather than

reflect upon and respect the democratic judgment

represented by a jury verdict.

Judicial use of

21

acquitted conduct thus permits and prompts

prosecutors to directly disregard and immediately

undermine the jurors’ efforts and to minimize the

meaning and value of the citizenry’s deliberative

process and perspective. This practice diminishes the

fairness of a criminal justice system in many respects

and affords the Government two bites at the apple.

See Canania, 532 F.3d at 776 (Bright, J., concurring)

(“We have a sentencing regime that allows the

Government to try its case not once but twice. The

first time before a jury; the second before a judge.”).

And it “undermines the defendant’s fundamental

interest in verdict finality, exposing the defendant to

a second mini-trial on conduct underlying the count of

acquittal in contravention of principles underlying

the Fifth and Sixth Amendments.” Barry L. Johnson,

If at First You Don’t Succeed—Abolishing the Use of

Acquitted Conduct in Guidelines Sentencing, 75

N.C.L. Rev. 153, 180 (1996); see also generally Shinn

v. Martinez-Ramirez, 595 U.S. ___, 142 S. Ct. 1718,

___ (2022) (emphasizing “the ‘essential’ need to

promote the finality of state convictions”).

Finally, the allowance of acquitted-conduct-based

sentences not only marginalizes the work of one of the

criminal justice system’s most critical participants—

jurors—but it also risks leading jurors to no longer

take their work seriously. Jurors, who are called on

to put their lives on hold and serve on significant

criminal cases, are unlikely to be dedicated to their

task when observing that their supposedly significant

constitutional role in our justice system is regularly

22

undermined at sentencing and their findings ignored

without explanation.3

As this and similar cases demonstrate, the

practice of judges significantly enhancing sentences

based on jury-rejected facts “has gone on long

enough.” Jones, 574 U.S. at 949. This Court should

take up Petitioner’s case in order to again ensure that

the “right of jury trial [will] be preserved, in a

meaningful way guaranteeing that the jury [will] still

stand between the individual and the power of the

government.” Booker, 543 U.S. at 237.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

3

Take, for instance, the experience of a juror in the trial of Antwaun Ball,

who was sentenced to 225 months in prison based on an acquitted-conduct

Guidelines range after the jury acquitted him of all but one charge, the

Guidelines range for which would have been 57-71 months. See United

States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014). Upset to learn of the

heightened sentence, the juror wrote to the judge to comment that it was a

“tragedy that one is asked to serve on a jury, serves, but then finds their

work may not be given the credit it deserves,” and lamented that the

“defendants are being sentenced not on the charges for which they have

been found guilty but on the charges for which the District Attorney’s

office would have liked them to have been found guilty.” See Jim

McElhatton, A $600 drug deal, 40 years in prison, The Washington Times

(Jun 29, 2008), https://www.washingtontimes.com/news/2008/jun/29/a600-drug-deal-40-years-in-prison/; Jim McElhatton, “Juror No. 6” stirs

debate on sentencing, The Washington Times (May 3, 2009)

https://www.washingtontimes.com/news/2009/may/3/juror-no-6questions-rules-of-sentencing/. He detailed the toll of jury service, and the

disappointment when the result of that toll falls on deaf ears: “What does

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

view, not given their proper weight.” Canania, 532 F.3d at 778 n.4

(Bright, J., concurring) (quoting Letter from Juror No. 6, citation omitted).

23

Respectfully submitted,

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

211 Avenue of the

Americas, 26th Floor

New York, NY 10036

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

July 8, 2022

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, Colorado 80202

303 830 1776

keith.bradley@squirepb.com