Petition for Writ of Certiorari — Terrance Stinson, aka T-Rock, Petitioner v. United States
Supreme Court briefFeb 18, 2022
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IN THE SUPREME COURT OF THE UNITED STATES
TERRANCE STINSON,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
_
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_
PETITION FOR A WRIT OF CERTIORARI
_
Marianne Mariano Federal
Public Defender
Anne Burger
Assistant Federal Public Defender
Counsel of Record
Federal Public Defender’s Office
28 E. Main Street, Suite 400
Rochester, New York 14614
Telephone: (585) 263-6201
══════════════════════════════════════
QUESTIONS PRESENTED FOR REVIEW
Whether sentencing based on acquitted conduct violates the Sixth Amendment
jury guarantee and the Fifth Amendment Due Process Clause.
ii
INTERESTED PARTIES
Petitioner submits that there are no parties to the proceeding other than those
named in the caption of the case.
iii
RELATED PROCEEDINGS
United States District Court (W.D.N.Y.):
United States of America v. Murphy, et al.,
No. 01-cr-06087-CJS (October 21, 2020)
United States of America v. Terrance Stinson
No. 03-cr-06176-CJS (May 23, 2005)
Terrance Stinson v. United States of America
No. 08-cv-06041-CJS (August 15, 2012)
Terrance Stinson v. United States of America
No. 16-cv-06323-MAT (November 20, 2019)
United States Court of Appeals (2d Cir.):
United States of America v. Stinson
No. 04-0477 (August 4, 2006)
Terrance Stinson v. United States of America
No. 12-3527 (July 19, 2013)
Stinson v. United States of America
No. 16-1491 (November 1, 2019)
United States of America v. Murphy (Stinson)
No. 20-3744 (November 24, 2021)
iv
Table of Contents
QUESTIONS PRESENTED FOR REVIEW .................................................................... ii
INTERESTED PARTIES ................................................................................................ iii
RELATED PROCEEDINGS............................................................................................ iv
TABLE OF AUTHORITIES ............................................................................................ vi
PETITION FOR WRIT OF CERTIORARI ...................................................................... 1
OPINIONS BELOW ......................................................................................................... 1
STATEMENT OF JURISDICTION ................................................................................. 2
CONSTITUTIONAL PROVISIONS INVOLVED............................................................ 2
STATEMENT OF THE CASE.......................................................................................... 2
REASONS FOR GRANTING THE WRIT ....................................................................... 6
This Court Should Address Whether Sentencing Based on Acquitted Conduct
Violates the Sixth Amendment Jury Guarantee and the Fifth Amendment Due
Process Clause. .............................................................................................................. 8
CONCLUSION................................................................................................................ 18
APPENDIX........................................................................................................................ 1
United States v. Terrance Stinson, 2019 WL 6170003, Decision & Order ............... A-1
Amended Judgment in a Criminal Case, October 19, 2020 ..................................... A-4
United States v. Terrance Stinson, 2021 WL 5499478, Decision & Order.............. A-12
v
TABLE OF AUTHORITIES
Federal Cases
Alleyne v. United States, 570 U.S. 99 (2013) ....................................................... 10, 13, 16
Apprendi v. New Jersey, 530 U.S. 466 (2000) ...................................................9, 14, 16, 17
Blakely v. Washington, 542 U.S. 296 (2004) .....................................................6, 12, 16, 17
Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. Ct. 2011) ................................... 11, 15
Cowart v. State, 178 So. 3d 651 (Miss. 2015) .................................................................. 17
Doty v. State, 884 So.2d 547 (Fla. Dist. Ct. App. 2004)................................................... 11
Duncan v. State of Louisiana, 391 U.S. 145 (1968)........................................................... 6
Harmon v. State, 248 P.3d 918 (Okla. Crim. App. 2011) ................................................ 11
In re Coley, 283 P.3d 1252 (Cal. 2012) ....................................................................... 11, 15
Johnson v. United States, 576 U.S. 591 (2015) ................................................................. 5
Jones v. United States, 526 U.S. 227 (1999) .............................................................. 16, 17
Jones v. United States, 574 U.S. 948 (2014) .................................................................... 13
Laux v. State, 821 N.E.2d 816 (Ind. 2005) ....................................................................... 11
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ..................................................8, 9, 10, 15
People v. Beck, 939 N.W.2d 213 (Mich. 2019) ............................................................ 11, 12
People v. Zowaski, 916 N.Y.S.2d 909 (N.Y. Crim. Ct. 2011) .......................................... 15
Rosales-Mireles v. United States, __ U.S. __, 138 S.Ct. 1897 (2018) ................................ 7
Simpson v. Commonwealth, No. 2012–SC–000605–MR, 2014 WL 2809840 ........... 11, 15
State v. Cote, 530 A.2d 775 (N.H. 1987)........................................................................... 11
State v. Desirey, 909 S.W.2d 20 (Tenn. Crim. App. 1995) .............................................. 11
vi
State v. Flowers, 249 P.3d 367 (Idaho 2011).................................................................... 11
State v. Hampton, 2016-50, 561-KA (La. App. 2 Cir. 5/18/16),
195 So. 3d 548 ............................................................................................................... 11
State v. Koons, 2011 VT 22, 189 Vt. 285, 20 A.3d 662 (2011) ......................................... 11
State v. Longo, 608 N.W.2d 471 (Iowa 2000) ................................................................... 11
State v. Marley, 364 S.E.2d 133, (N.C. 1988) ............................................................ 11, 12
State v. Melvin, 258 A.3d 1075 (N.J. 2021) ............................................................... 11, 12
State v. Oldenburg, 628 N.W.2d 278 (Neb. Ct. App. 2001) ............................................. 11
State v. Witmer, 2011 ME 7, 10 A.3d 728 (Me. 2011)...................................................... 11
United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015) ........................................... 13, 17, 18
United States v. Booker, 543 U.S. 220 (2005) ...................................................9, 10, 15, 16
United States v. Brown, 892 F.3d 385 (D.C. Cir. 2018)................................................... 13
United States v. Cabrera-Rangel, 730 F. App’x. 227 (5th Cir. 2018) .............................. 15
United States v. Canania, 532 F.3d 764 (8th Cir. 2008) ................................................. 14
United States v. Ciavarella, 716 F.3d 705 (3d Cir. 2013) ............................................... 10
United States v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019)................................................ 5
United States v. Dorcely, 454 F.3d 366 (D.C. Cir. 2006) ........................................... 10, 15
United States v. Duncan, 400 F.3d 1297 (11th Cir. 2005) ........................................ 10, 15
United States v. Farias, 469 F.3d 393 (5th Cir. 2006) .............................................. 10, 15
United States v. Faust, 456 F.3d 1342 (11th Cir. 2006) .................................................. 14
United States v. Gobbi, 471 F.3d 302 (1st Cir. 2006) ................................................ 10, 15
United States v. Grier, 475 F.3d 556 (3d Cir. 2007) .................................................. 14, 15
United States v. Grubbs, 585 F.3d 793 (4th Cir. 2009) ................................................... 10
vii
United States v. Hurn, 496 F.3d 784, 788 (7th Cir. 2007) .............................................. 15
United States v. Ibanga, 271 F. App’x. 298 (4th Cir. 2008) ............................................ 10
United States v. Jackson, 862 F.3d 365 (3rd Cir. 2017) .................................................. 13
United States v. Jones, 744 F.3d 1362 (D.C. Cir. 2014) .................................................. 15
United States v. Lasley, 832 F.3d 910 (8th Cir. 2016)..................................................... 13
United States v. Magallanez, 408 F.3d 672 (10th Cir. 2005) .................................... 10, 15
United States v. Mankowski, 111 F.3d 130 (4th Cir. 1997) ............................................ 16
United States v. Martinez, 769 F. App’x. 12 (2d Cir. 2019)............................................. 13
United States v. McClinton, 23 F.4th 732 (7th Cir. 2022) .............................................. 14
United States v. Mercado, 474 F.3d 654 (9th Cir. 2007) ................................10, 14, 15, 16
United States v. Price, 418 F.3d 771 (7th Cir. 2005) ....................................................... 15
United States v. Reese, No. CR 11-2294 RB (D. N.M. 2014) (unpublished)
2014 WL 12785114 ....................................................................................................... 14
United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) ................................ 13
United States v. Settles, 530 F.3d 920 (D.C. Cir. 2008)................................................... 14
United States v. Thurman, 889 F.3d 356 (7th Cir. 2018) ............................................... 15
United States v. Tyndall, 521 F.3d 877 (8th Cir. 2008) .................................................. 10
United States v. Vaughn, 430 F.3d 518 (2d Cir. 2005) .......................................... 6, 10, 15
United States v. Waltower, 643 F.3d 572 (7th Cir. 2011).......................................... 10, 15
United States v. Watts, 519 U.S. 148 (1997) ............................................................. passim
United States v. White, 551 F.3d 381 (6th Cir. 2008).....................................10, 14, 15, 16
Statutes
18 U.S.C. § 924(c) ....................................................................................................... 3, 4, 5
vii
18 U.S.C. § 924(c)(3) ........................................................................................................... 5
21 U.S.C. § 841(a)(1) ....................................................................................................... 2, 3
21 U.S.C. § 841(b)(1)(A) .................................................................................................. 2, 3
21 U.S.C. § 846 ............................................................................................................... 2, 3
18 U.S.C. § 1951 ............................................................................................................. 2, 4
18 U.S.C. § 3582(c)(2) ......................................................................................................... 5
18 U.S.C. § 3661 ........................................................................................................... 8, 14
28 U.S.C. § 1254(1) ............................................................................................................. 2
28 U.S.C. § 1291 ................................................................................................................. 2
28 U.S.C. § 2253 ................................................................................................................. 2
28 U.S.C. § 2255 ......................................................................................................... 1, 2, 5
Bills and Resolutions
Prohibiting Punishment of Acquitted Conduct Act, S. 601 & H.R. 1621,
117th Cong. (2021).................................................................................................. 14, 15
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) .................................. 17
Blackstone, Commentaries on the Laws of England (1769) Vol. 3................................... 6
McSweeney, Thomas J., Magna Carta and the Right to Trial by Jury, William & Mary
Law School (2014), Faculty Publications, 1722 (2014) .................................................. 7
Orhun Hakan Yalinçak, Critical Analysis of Acquitted Conduct Sentencing in the U.S.:
“Kafka-esque,” “Repugnant,” “Uniquely Malevolent,” and “Pernicious,” 54 Santa Clara
L. Rev. 675 (2014) .......................................................................................................... 17
ix
Robert J. Conrad, Jr. & Katy L. Clements, The Vanishing Criminal Jury Trial: From
Trial Judges to Sentencing Judges, 80 GEO. WASH. L. REV. 99 (2018) ....................... 16
Constitutional Provisions
U.S. Const. amend. V. ........................................................................................................ 2
U.S. Const. amend. VI .................................................................................................... 2, 9
U.S. Const. art. III, § 2 ....................................................................................................... 7
Sentencing Guidelines
U.S.S.G. § 2D1.1(c) ............................................................................................................. 5
x
IN THE SUPREME COURT OF THE UNITED STATES
No.
TERRANCE STINSON,
Petitioner
v.
UNITED STATES OF AMERICA,
Respondent
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PETITION FOR WRIT OF CERTIORARI
Petitioner Terrance Stinson respectfully petitions for a writ of certiorari to
review the judgment of the United States Court of Appeals for the Second Circuit in
this case.
OPINIONS BELOW
The opinion of the Court of Appeals under review (App. A-12) is unreported. The
district court’s order granting Petitioner’s 28 U.S.C. § 2255 motion to vacate sentence
is also unreported (App. A-1). The district court’s amended judgment upon
resentencing is unreported (App. A-4).
STATEMENT OF JURISDICTION
Jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1). The decision of
the Court of Appeals was entered on November 24, 2021. This petition is timely filed
pursuant to Sup. Ct. R. 13.1. The lower court had jurisdiction over this case pursuant
to 28 U.S.C. §§ 1291, 2253, and 2255.
CONSTITUTIONAL PROVISIONS INVOLVED
The Sixth Amendment provides in relevant part: “In 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 Fifth Amendment provides in relevant part: “No person shall be . . .
deprived of life, liberty, or property, without due process of law . . .” U.S. Const. amend.
V.
STATEMENT OF THE CASE
Petitioner proceeded to jury trial on charges that he conspired to traffic in
cocaine, cocaine base, heroin and marijuana from 1993 to January of 2002, in violation
of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846. The trafficking count included, among
other conduct, possessing with the intent to distribute and distributing ½ kilo of
cocaine, the proceeds from a 1994 robbery of drug dealer Shawn Battle [the “Battle
robbery”]. The jury also considered counts of conspiracy to commit Hobbs Act robberies
of other drug dealers, including Rosemary Inostroza, from September 1997 to February
2001, in violation of 18 U.S.C. § 1951 [the “Inostroza robbery count”], and one count
each of possessing a firearm in furtherance of the drug trafficking conspiracy, and
2
using and carrying a firearm in furtherance of the Inostroza robbery, both in violation
of 18 U.S.C. § 924(c). The jury found Petitioner guilty of the two § 924(c) firearm
counts, the Inostroza robbery count, and conspiring to traffic in cocaine base but
acquitted him of trafficking in cocaine, heroin and marijuana. Recognizing the jury had
acquitted him of the conduct and relying on United States v. Watts, 519 U.S. 148 (1997)
(per curiam), the trial court engaged in fact finding, applied a preponderance of the
evidence standard and concluded that Petitioner was responsible for the Battle
robbery. The court imposed a 720 months sentence based, in part, on the acquitted
conduct.
More than fifteen years later, the district court vacated and dismissed the
second § 924(c) count. At a resentencing hearing and over his Fifth and Sixth
Amendment-based objections, the court adhered to its earlier sentencing
determination, again finding Petitioner responsible for the Battle robbery, and
imposing a 322-months sentence (less 23 months credit for the service of a prior state
sentence that was related to his counts of conviction). On appeal, the Second Circuit
affirmed, holding that his Fifth and Sixth Amendment claims were foreclosed by Watts.
For the reasons stated below, the petition should be granted.
Petitioner was charged along with several others with conspiring to traffic in 5
kilograms or more of cocaine, 50 grams or more of cocaine base, heroin and marijuana
from 1993 to 2002 and, during that time, possessing a firearm in furtherance of that
activity, all in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846 and 18 U.S.C. §
924(c). He was also charged with a 1997 - 2001 Hobbs Act conspiracy, as well as using
and carrying a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §§
3
1951 and 924(c). At a month-long, 2003 jury trial, the government produced evidence
that Petitioner engaged in drug trafficking – chiefly cocaine base – during the charged
timeframe, along with evidence that, in 1994, Petitioner and the others robbed drug
dealer Shawn Battle of ½ kilogram of cocaine for the purpose of selling it. The Battle
robbery allegation was particularly egregious. The government alleged that Stinson
and several others restrained and kidnapped Battle, shot him in the face, robbed him
of ½ kilogram of cocaine and money, and left him for dead. In conjunction with the
Hobbs Act conspiracy and related § 924(c) count, the government presented proof that
in 1999 the group robbed and beat up drug dealer Rosemary Inostroza, stealing
jewelry. The government also presented evidence that the group robbed another drug
dealer, Mark Imes, of money.
After deliberating for several days, the jury found Petitioner guilty of conspiring
to traffic in 50 grams or more of cocaine base and the related § 924(c) count, along with
the Inostroza robbery count and its related § 924(c) count. However, the jury acquitted
Petitioner of conspiring to traffic in cocaine, heroin or marijuana. Recognizing that the
jury had acquitted Petitioner of involvement in the Battle robbery, the trial court
sentenced Petitioner to a cumulative term of 720 months: concurrent terms of 360
months on the cocaine base conspiracy count and 240 months on the Inostroza robbery
count, and terms of 60 and 300 months on the two § 924(c) counts to be served
consecutively to each other and to the remaining counts. Based on this Court’s holding
in United States v. Watts, 519 U.S. 148, and despite Petitioner’s Fifth and Sixth
Amendment objections, the trial court relied on the Battle robbery allegations to arrive
at its sentence after finding that a preponderance of the evidence established
4
Petitioner’s culpability for that offense. 1
Petitioner’s direct appeal and initial § 2255 collateral attack of his conviction
were unsuccessful. 2 In response to this Court’s decisions in Johnson v. United States,
576 U.S. 591 (2015), and United States v. Davis, __ U.S. __, 139 S. Ct. 2319 (2019),
striking down the residual clause of 18 U.S.C. § 924(c)(3) as unconstitutionally vague,
Petitioner was granted leave to file a successive § 2255 motion. In 2019, the trial court
granted the motion, vacated the judgment of conviction and dismissed the second §
924(c) count relating to the Inostroza robbery, along with its 300-months consecutive
sentence, and ordered a resentencing hearing on the remaining three counts: the
cocaine base conspiracy and related § 924(c) count and the Inostroza robbery count.
Petitioner was resentenced in 2020 to an aggregate term of 322 months taking
account of a 23-months downward departure to award him credit for a related state
sentence that he had previously served. At the resentencing hearing, and again over
Petitioner’s Fifth and Sixth Amendment-related objections to its consideration of the
acquitted Battle robbery allegations, the trial court adhered to the findings it had
made at the 2004 sentencing that, in spite of the acquittal, Petitioner was responsible
for the Battle robbery. The district court again imposed a sentence that explicitly took
1On May 17, 2005, in connection with his trial conviction for retaliation against a
witness in United States of America v. Terrance Stinson, No. 03-cr-06176-CJS, the
court imposed an additional 78 months sentence, 39 months of which was to run
concurrently with the 720 months sentence in the federal conspiracy case.
2While the initial collateral attack was pending, the trial court granted two motions
pursuant to 18 U.S.C. § 3582(c)(2) and reduced Petitioner’s sentence for the retroactive
application of two amendments to U.S.S.G. § 2D1.1(c) that reduced base offense levels
for some cocaine base offenses; by 2012, Petitioner’s aggregate sentence had been
reduced from 720 months to 622 months.
5
account of the acquitted conduct relating to the Battle robbery. Petitioner appealed.
The Second Circuit Court of Appeals affirmed Petitioner’s sentence, summarily
rejecting as foreclosed his Fifth and Sixth Amendment arguments relating to the
acquitted Battle robbery conduct. That court adhered to its decision in United States v.
Vaughn, 430 F.3d 518 (2d Cir. 2005), that interpreted this Court’s decision in Watts as
approving sentencing courts’ use of acquitted conduct as consistent with the Sixth
Amendment’s jury trial guarantee and Fifth Amendment Due Process Clause.
REASONS FOR GRANTING THE WRIT
Jury verdicts –and the rarer subset of acquittals – are special and entitled to
deference. The Sixth Amendment’s jury trial guarantee in criminal cases is so
“fundamental to the American scheme of justice” that our Constitution guarantees it in
all criminal cases whether in state or federal court. Duncan v. State of Louisiana, 391
U.S. 145, 149 (1968). “The jury could not function as circuitbreaker in the State's
machinery of justice if it were relegated to making a determination that the defendant
at some point did something wrong, a mere preliminary to a judicial inquisition into
the facts of the crime the State actually seeks to punish.” Blakely v. Washington, 542
U.S. 296, 306 (2004) (emphasis in original).
More than 250 years ago, William Blackstone wrote that “the trial by jury ever
has been, and I trust ever will be looked upon as the glory of the English law, and it
has so great an advantage over others in regulating civil property, how much must
that advantage be heightened, when it is applied to criminal cases!”
Blackstone, Commentaries on the Laws of England (1769) Vol. 3, pp. 378-79. Legal
6
scholars believe that, as of the time of Magna Carta, civil and criminal juries were
already “regular parts of the administration of justice” in England. McSweeney,
Thomas J., Magna Carta and the Right to Trial by Jury, William & Mary Law School
(2014), Faculty Publications, 1722, 145 (2014). Reflecting this support for the right to a
jury trial in criminal cases, the founders ensured that the Constitution provided that
“[t]rial of all crimes, except in case of impeachment, shall be by jury”. U.S. Const. art.
III, § 2. It is, therefore, no empty ritual when a jury, like Petitioner’s, comprised of an
accused’s peers listens carefully to a month’s worth of evidence at a trial, deliberates
over the course of several days, and unanimously decides that the government failed to
prove the accused’s guilt on a criminal count. “[T]he public legitimacy of our justice
system relies on procedures that are neutral, accurate, consistent, trustworthy, and
fair, and that provide opportunities for error correction.” Rosales-Mireles v. United
States, __ U.S. __, __, 138 S.Ct. 1897, 1908 (2018). When a sentencing judge nullifies
the jury’s verdict by sentencing the defendant based on conduct the jury found to be
unproven, the legitimacy of our justice system is undercut in the eyes of the public. In
light of discord over this issue among the state and federal courts, this Court’s
attention is needed to make clear that acquitted conduct sentencing violates the Sixth
Amendment’s jury trial right and the Fifth Amendment’s Due Process Clause.
7
This Court Should Address Whether Sentencing Based
on Acquitted Conduct Violates the Sixth Amendment
Jury Guarantee and the Fifth Amendment Due Process
Clause.
Federal courts have consistently affirmed acquitted conduct sentencing based on
United States v. Watts, 519 U.S. 148 (1997) (per curiam). Federal and state courts
disagree, however, whether the Watts holding is limited to the Double Jeopardy
context or, instead, it also applies to overrule objections under the Fifth Amendment’s
Due Process Clause and the Sixth Amendment’s jury trial right. Further, a split has
developed between some states and the federal courts over whether the Fifth and Sixth
Amendments permit acquitted conduct sentencing in the first place. The Court’s
guidance is needed to resolve this discord over the application of Watts and whether
acquitted conduct sentencing is consistent with the Sixth Amendment jury trial right
and the Fifth Amendment’s Due Process Clause.
Nearly 25 years ago, this Court held, in Watts, that Title 18 § 3661 and the Federal
Sentencing Guidelines empower sentencing judges to base a federal defendant’s
sentence on criminal conduct for which he was acquitted. The Court did not conduct its
analysis under the Sixth Amendment jury trial right or the Fifth Amendment’s Due
Process Clause. Then Justice Kennedy faulted the majority for failing to distinguish
between a sentencing court’s consideration of uncharged versus acquitted conduct and
for determining the issue without full briefing or oral argument. Watts, 519 U.S. at
171 (Kennedy, J., dissenting).
Leading up to Watts, this Court had not addressed the constitutionality of acquitted
conduct sentencing. Roughly ten years earlier, in McMillan v. Pennsylvania, 477 U.S.
8
79, 81 (1986), the Court analyzed whether the due process clause and Sixth
Amendment jury trial right permitted a state trial court to find facts not submitted to
a jury that would trigger a mandatory minimum prison term. Saying that there was no
reason to “constitutionaliz[e] burdens of proof at sentencing”, id. at 92, the Court held
that preponderance of the evidence sentencing fact finding did not create due process
concerns or run afoul of the Sixth Amendment. Id. at 91-93. The Court followed
McMillan with Watts in 1997. Although Watts dealt with a sentencing court's
consideration of acquitted conduct, it did so in a limited way by determining whether
the reliance on such conduct violated the Double Jeopardy Clause of the Fifth
Amendment. Relating its holding to its earlier work in McMillan, the Court held that
“a jury's verdict of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct has been proved by a
preponderance of the evidence.” Watts at 157.
Over the next ten years, the foundations of federal sentencing shifted dramatically.
Through a series of landmark holdings grounded in the Fifth Amendment’s Due
Process Clause and the Sixth Amendment’s jury trial right the Court made clear that
the Constitution guaranteed in federal and state criminal prosecutions that, “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 476, 490 (2000).
Five years later, in United States v. Booker, 543 U.S. 220 (2005), the Court rendered
the federal sentencing guidelines advisory. In doing so, a majority of the Court
removed all doubt that the “very narrow” holding of Watts was limited to the
9
interaction of the sentencing guidelines with the Double Jeopardy Clause and no Sixth
Amendment claim had been presented. Booker, 543 U.S. at 240 and n.4. The Court
further took the wind out of Watts’ sails by emphasizing Justice Kennedy’s Watts
dissent along with his point that it “did not even have the benefit of full briefing or oral
argument. It is unsurprising that we failed to consider fully the issues presented to us
in these cases.” Id. Most recently, in Alleyne v. United States, 570 U.S. 99, 114 (2013),
the Court emphasized that requiring a jury verdict “preserves the historical role of the
jury as an intermediary between the State and criminal defendants.” Alleyne hobbled
Watts when it overruled McMillan and determined that “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Alleyne at 102.
In contrast to the apparent waning significance of Watts in this Court’s
jurisprudence, over the intervening years all of the federal courts of appeals have held
that Watts-type acquitted conduct sentencing is constitutional, with some also
concluding that Watts was not undermined by Booker. 3 One court, in United States v.
Ibanga, 271 F. App’x. 298, 301 (4th Cir. 2008) (unpublished), further concluded that a
3See, e.g., United States v. Ciavarella, 716 F.3d 705, 735 (3d Cir. 2013) (constitutional);
United States v. Waltower, 643 F.3d 572, 574-76 (7th Cir. 2011) (constitutional and
Booker did not undermine Watts); United States v. Grubbs, 585 F.3d 793, 798-99 (4th
Cir. 2009) (same); United States v White, 551 F.3d 381, 383 (6th Cir. 2008) (en banc)
(same); United States v. Tyndall, 521 F.3d 877, 883 (8th Cir. 2008) (constitutional);
United States v. Mercado, 474 F.3d 654, 657-58 (9th Cir. 2007) (Constitutional and
Booker did not undermine Watts); United States v. Gobbi, 471 F.3d 302, 314 (1st Cir.
2006) (superseded on unrelated issue) (same); United States v. Farias, 469 F.3d 393,
399 (5th Cir. 2006) (same); United States v. Dorcely, 454 F.3d 366, 371-74 (D.C. Cir.
2006) (same); United States v. Vaughn, 430 F.3d 518, 525-26 (2d Cir. 2005) (same);
United States v. Magallanez, 408 F.3d 672, 684-85 (10th Cir. 2005) (same); United
States v. Duncan, 400 F.3d 1297, 1304-5 (11th Cir. 2005) (same).
10
district court committed procedural error when it refused to consider acquitted conduct
evidence at sentencing. At least nine of the states have also relied on Watts in their
approval of acquitted conduct sentencing under the federal Constitution. 4
Five states, on the other hand, take the position that the reliance on acquitted
conduct violates the Constitution. 5 Still other states have recognized the disagreement
among courts on the issue but have avoided weighing in on the question. 6
Two recent state supreme court holdings in People v. Beck, 939 N.W.2d 213
(Mich. 2019), and State v. Melvin, 258 A.3d 1075 (N.J. 2021), stand in sharp relief
against federal courts’ adoption of acquitted conduct sentencing as constitutional. In
Beck, 939 N.W.2d 213, 216, 226, the Michigan Supreme Court emphasized that “[t]his
ends here” and “[o]nce acquitted of a given crime, it violates due process to sentence
the defendant as if he committed that very same crime.” The Beck court cited with
4See, e.g., State v. Hampton, 2016-50,561-KA, p. 22-23 (La. App. 2 Cir. 5/18/16), 195 So.
3d 548, 561; Simpson v. Commonwealth, No. 2012–SC–000605–MR, 2014 WL 2809840,
*9 (Ky. 2014) (unpublished); In re Coley, 283 P.3d 1252, 1274-76 (Cal. 2012);
Commonwealth v. Stokes, 38 A.3d 846, 861 (Pa. Super. Ct. 2011) (abrogated on other
basis); State v. Flowers, 249 P.3d 367, 373 (Idaho 2011) (dicta); Harmon v. State, 248
P.3d 918, 939-40 (Okla. Crim. App. 2011); Laux v. State, 821 N.E.2d 816 (Ind. 2005)
(double jeopardy context only); State v. Oldenburg, 628 N.W.2d 278, 286 (Neb. Ct. App.
2001); State v. Longo, 608 N.W.2d 471 (Iowa 2000).
5See, e.g., State v. Melvin, 258 A.3d 1075, 1093-94 (N.J. 2021) (Sixth and Fourteenth
Amendments); People v. Beck, 939 N.W.2d 213, 225-27 (Mich. 2019), cert. den’d, __U.S.
__, 140 S.Ct. 1243 (2020) (Sixth and Fourteenth Amendments); Doty v. State, 884 So.2d
547, 549 (Fla. Dist. Ct. App. 2004) (due process); State v. Marley, 364 S.E.2d 133, 13839 (N.C. 1988) (presumption of innocence and due process); State v. Cote, 530 A.2d 775,
374-75 (N.H. 1987) (presumption of innocence and due process).
6See, e.g., State v. Koons, 2011 VT 22, ¶11 n. 2, 189 Vt. 285, 289 n. 2, 20 A.3d 662, 665
n. 2 (2011) (recognizing disagreement but “defer[ring decision on the issue] to another
day.”), see also State v. Witmer, 2011 ME 7, ¶¶ 21-24, 10 A.3d 728, 733-34 (Me. 2011)
(recognizing disagreement); State v. Desirey, 909 S.W.2d 20, 31-32 (Tenn. Crim. App.
1995) (same).
11
approval the opinion of the North Carolina Supreme Court in State v. Marley that
acquitted conduct sentencing “is fundamentally inconsistent with the presumption of
innocence itself.” Beck at 225, quoting State v. Marley, 364 S.E.2d 133, 139.
Recognizing that its opinion was in the minority, the Beck court observed that its
conclusion was in part bolstered by “the volume and fervor of judges and commentators
who have criticized the practice of using acquitted conduct as inconsistent with
fundamental fairness and common sense.” Id. at 226. Last year, in State v. Melvin, 258
A.3d 1075, 1093, the New Jersey Supreme Court reviewed a state trial court’s reliance
on Watts in sentencing Melvin for acquitted conduct. As in Beck, the Melvin court
concluded that the practice violated the federal Constitution’s due process and jury
trial rights as incorporated in the Fourteenth Amendment: “[w]e hold that the findings
of juries cannot be nullified through lower-standard fact findings at sentencing.” Id.
Relying in part on Justice Scalia’s hypothetical from Blakely relating to the absurdity
of a man being sentenced for murder when he was convicted only of possessing the
firearm used, the Melvin court called “absurd” the result that Melvin was sentenced for
using a firearm to shoot others when the jury had acquitted him of all charges
associated with using or having the gun for an unlawful purpose. Id. at 1092. Like the
Beck court, the court in Melvin recognized the consistent and vigorous disagreement
over the use of acquitted conduct sentencing both among federal and state judges and
legal commentators. Id. at 1089-90.
In the face of widespread acceptance of the Watts holding as endorsing the
constitutionality of acquitted conduct sentencing, members of this Court and others
have also cautioned that acquitted conduct sentencing may be inconsistent with the
12
Fifth Amendment Due Process Clause and the Sixth Amendment’s jury trial
guarantee. Complaining that “[t]his has gone on long enough,” then Justice Scalia,
joined by Justices Thomas and Ginsburg, dissented from the denial of certiorari in
Jones v. United States, 574 U.S. 948 (2014), on the issue of whether the Sixth
Amendment permits acquitted conduct sentencing in light of Alleyne. Citing the Jones
dissent in the even broader context of a sentencing court’s general fact finding, then
Tenth Circuit Court of Appeals Judge Gorsuch acknowledged as “questionable” the
assumption “that a district judge may either decrease or increase a 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.” United States v. Sabillon-Umana,
772 F.3d 1328, 1331 (10th Cir. 2014). Other federal appellate judges have expressed
similar concerns with acquitted conduct sentencing. 7 As recently as last month, in
7See, e.g., United States v. Martinez, 769 F. App’x. 12, 17 (2d Cir. 2019) (unpublished)
(Pooler, J., concurring) (“[D]eeply troubling” and “fundamentally unfair” that trial
court used “acquitted conduct to enhance a defendant’s sentence – here, to life
imprisonment”.); United States v. Brown, 892 F.3d 385, 408 (D.C. Cir. 2018) (Millett,
J., concurring) (“[A]llowing courts at sentencing to materially increase the length of
imprisonment based on conduct for which the jury acquitted the defendant guts the
role of the jury in preserving individual liberty and preventing oppression by the
government.”) (cleaned up); id. at 415 (Kavanaugh, J., dissenting in part) (“[T]here are
good reasons to be concerned about the use of acquitted conduct at sentencing, both as
a matter of appearance and as a matter of fairness ....”); United States v. Jackson, 862
F.3d 365, 415 (3rd Cir. 2017) (McKee, J., dissenting) (Court “unwilling” to require the
district court to resentence defendants according to guidelines intended to guide
sentences imposed for the very offense defendants were acquitted of.”); United States v.
Lasley, 832 F.3d 910, 922 (8th Cir. 2016) (Bright, J., dissenting) (“The time has come to
. . . overrule existing precedent permitting the use of acquitted conduct to enhance a
defendant’s sentence.”); United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015)
(Kavanaugh, J., concurring in denial of rehearing en banc) (“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.”);
id., at 929 (Millet, J., concurring) (“[L]iberty-protecting bulwark [of the jury] becomes
13
United States v. McClinton, 23 F.4th 732, 735 (7th Cir. 2022), the Seventh Circuit
Court of Appeals said of a criminal defendant’s foreclosed acquitted conduct challenge
McClinton's contention is not frivolous. It preserves for Supreme Court
review an argument that 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
allowing courts to factor acquitted conduct into sentencing calculations. . .
Until such time as the Supreme Court alters its holding, we must follow
its precedent.
Last year, in an effort to bar federal judges from increasing criminal defendants’
sentences based on acquitted conduct, Congress introduced the bicameral Prohibiting
Punishment of Acquitted Conduct Act of 2021 [the “Act”] that would amend Title 18
U.S.C. § 3661 to prohibit federal courts from relying on acquitted conduct from federal,
state or tribal courts to increase a defendant’s sentence. See S. 601, 117th Cong. § 2
little more than a speed bump at sentencing.”); United States v. Reese, No. CR 11-2294
RB (D. N.M. 2014) (unpublished) 2014 WL 12785114, *5 (“Court shares Justice Scalia’s
discomfort with the current state of the law and agrees that the Supreme Court should
clarify this legal issue.”); United States v. White, 551 F.3d 381, 392 (Merritt, J.,
dissenting) (“[T]he use of acquitted conduct at sentencing defies the Constitution, our
common law heritage, the Sentencing Reform Act, and common sense.”); United States
v. Canania, 532 F.3d 764, 778 (8th Cir. 2008) (Bright, J., concurring) (“I wonder what
the man on the street might say about this practice of allowing a prosecutor and judge
to say that a jury verdict of ‘not guilty’ for practical purposes may not mean a thing.”);
United States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008) (Kavanaugh, J.) (noting
disagreement among jurists including Justice Kennedy’s dissent in Watts); United
States v. Grier, 475 F.3d 556, 586 n. 34 (3d Cir. 2007) (Ambro, J., concurring)
(Acquitted conduct practice in Watts “might still violate the jury right of the Sixth
Amendment as expounded by Apprendi and its progeny.”); United States v. Mercado,
474 F.3d 654, 658 (Fletcher, J., dissenting) (“When a jury refuses to convict defendants
of several counts, but the trial court nonetheless relies on that same acquitted conduct
to increase the defendants' sentences sevenfold, the jury has not authorized the
resulting sentences in any meaningful sense.”); United States v. Faust, 456 F.3d 1342,
1349 (11th Cir. 2006) (Barkett, J., concurring specially) (“I strongly believe ... that
sentence enhancements based on acquitted conduct are unconstitutional under the
Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment”).
14
(2021) and H.R. 1621, 117th Cong. § 2 (2021). The Act has not yet been ratified by
Congress; if ratified in its present form, the bill would not have retroactive effect and
would not resolve the current split on the issue among the states. Id.
In spite of the efforts of Congress to address this persistent problem, this Court
should answer the call of so many jurists on the issue of the constitutionality of
acquitted conduct sentencing. Unlike Congress by way of the Act, this Court is
empowered to bring consistency to both federal and state courts in their interpretation
of the reach of the Watts holding and the constitutionality of acquitted conduct
sentencing. Further, despite its narrow Double Jeopardy holding, many federal and
state courts have expanded the application of Watts to permit acquitted conduct
sentencing under the Fifth and Sixth Amendments. 8 Dissenting federal jurists have
8See e.g., United States v. Cabrera-Rangel, 730 F. App’x. 227, 228 (5th Cir. 2018)
(unpublished) (Sixth Amendment); United States v. Thurman, 889 F.3d 356, 371 (7th
Cir. 2018) (Sixth Amendment); Simpson v. Commonwealth, No. 2012–SC–000605–MR,
2014 WL 2809840, *9 (due process); United States v. Jones, 744 F.3d 1362, 1369 (D.C.
Cir. 2014) (Sixth Amendment and due process); In re Coley, 283 P.3d 1252, 1274-76
(Sixth Amendment); Commonwealth v. Stokes, 38 A.3d 846, 861-62 (consistent with
due process and Sixth Amendment, citing Watts and McMillan); United States v.
Waltower, 643 F.3d 572, 575 (due process); People v. Zowaski, 916 N.Y.S.2d 909, 916-17
(N.Y. Crim. Ct. 2011) (consistent with Sixth Amendment, citing Watts); United States
v. White, 551 F.3d 381, 383-84 (Sixth Amendment); United States v. Hurn, 496 F.3d
784, 788 (7th Cir. 2007) (due process and Sixth Amendment); United States v. Grier,
475 F.3d 556, 562 (due process and Sixth Amendment); United States v. Mercado, 474
F.3d 654, 661 (Fletcher, J., dissenting) (“Despite [the] clear limitation of Watts's
holding, the majority here applies Watts to the Sixth Amendment issue before us,
ignoring Booker's requirement that the jury's verdict alone must authorize a
defendant's sentence.”); United States v. Gobbi, 471 F.3d 302, 314 (Sixth Amendment
and due process); United States v. Farias, 469 F.3d 393, 399; United States v. Dorcely,
454 F.3d 366, 371-73 (Sixth Amendment and due process); United States v.
Magallanez, 408 F.3d 672, 684-85 (Sixth Amendment); United States v. Vaughn, 430
F.3d 518, 525-26 (Sixth Amendment and due process); United States v. Price, 418 F.3d
771, 787-88 (7th Cir. 2005) (Sixth Amendment); United States v. Duncan, 400 F.3d
15
pointed out that a legion of state and federal courts interpret Watts as applying in the
Fifth Amendment due process and Sixth Amendment jury guarantee context. 9 The
Court’s guidance would clarify the scope and continued application of Watts and
thereby resolve this dispute.
The Supreme Court's decisions in Apprendi, Booker, Blakely and Alleyne all
emphasize the essential role of the Sixth Amendment right to a jury trial. In Apprendi
the Court examined the “historical foundation” for the right to a jury trial to “guard
against a spirit of oppression and tyranny on the part of rulers.” The Court also noted
the “Framers' fears ‘that the jury right could be lost not only by gross denial, but by
erosion.”’ Apprendi, 530 U.S. at 483 (quoting Jones v. United States, 526 U.S. 227, 248
(1999)). In Booker, the Court recognized the need to preserve the jury trial right “in a
meaningful way guaranteeing that the jury would still stand between the individual
and the power of the government.” Booker, 543 U.S. at 237. The number of federal jury
trials are already dwindling at an astonishing rate. See Robert J. Conrad, Jr. & Katy L.
Clements, The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing
Judges, 80 GEO. WASH. L. REV. 99, 103 (2018) (Compare 3258 federal criminal jury
trials nationwide in 2006 with only 1713 such trials in 2016). Not only does the use of
acquitted conduct at sentencing undermine core Fifth and Sixth Amendment
1297, 1304 (Sixth Amendment); United States v. Mankowski, 111 F.3d 130 (4th Cir.
1997) (Sixth Amendment).
9See, e.g., United States v. White, 551 F.3d 381, 392 (Merritt, J., dissenting) (Faulting
“majority’s simple and single-minded reliance on Watts” as to Sixth Amendment claim.)
United States v. Mercado, 474 F.3d 654, 661 (Fletcher, J., dissenting) (“Despite [the]
clear limitation of Watts's holding, the majority here applies Watts to the Sixth
Amendment issue before us, ignoring Booker's requirement that the jury's verdict
alone must authorize a defendant's sentence.”).
16
principles, 10 it invariably has a chilling effect on a criminal defendant’s exercise of his
or her Sixth Amendment right where a sentencing court is free to ignore a jury’s
verdict of acquittal in imposing sentence. 11
As then Judge Kavanaugh queried in United States v. Bell, 808 F.3d 926, 928
(D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of rehearing en banc) “[i]f 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?” Id.
The jury in this case attempted to fulfill its role as “circuitbreaker in the State's
machinery of justice” 12 finding Petitioner not guilty of the Shawn Battle robbery. And
yet the district court relied on that acquitted conduct in imposing the sentence. This
significant “erosion” 13 of the right to due process and a trial jury is unconstitutional.
This Court should address the “important, frequently recurring, and troubling
contradiction in sentencing law” 14 of whether the Sixth Amendment’s jury guarantee
10See, 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, 25-26 (2016); see
also Orhun Hakan Yalinçak, Critical Analysis of Acquitted Conduct Sentencing in the
U.S.: “Kafka-esque,” “Repugnant,” “Uniquely Malevolent,” and “Pernicious,” 54 Santa
Clara L. Rev. 675, 679 (2014).
11See, Cowart v. State, 178 So. 3d 651, 674 (Miss. 2015) (King, J., dissenting) (In
acquitted conduct case imposing increased sentence in whole or in part due to exercise
of jury trial right “casts a chill over the exercise of guaranteed fundamental
constitutional rights.”) (internal quote and cite omitted).
12Blakely v. Washington, 542 U.S. 296, 306.
13Apprendi v. New Jersey, 530 U.S. 466, 483 (quoting Jones v. United States, 526 U.S.
466, 248).
14United States v. Bell, 808 F.3d 926, 932 (Millett, J., concurring in the denial of
rehearing en banc).
17
and Fifth Amendment’s Due Process Clause permit a court to rely on acquitted conduct
to increase its sentence. The large scale disagreement among state and federal courts
over such a “dubious infringement of the rights to due process and to a jury trial” 15
deserves this Court’s attention.
CONCLUSION
Based upon the foregoing petition, the Court should grant a writ of certiorari to
the Court of Appeals for the Second Circuit.
Respectfully submitted,
MARIANNE MARIANO
FEDERAL PUBLIC DEFENDER
By:
s/Anne M. Burger
Anne M. Burger
Assistant Federal Public Defender
Counsel for Petitioner
Rochester, New York
February 18, 2022
15United States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring
in denial of rehearing en banc).
18
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.