Amicus Curiae Brief — Yonell Allums, Petitioner v. United States

No. 21-996

In the Supreme Court of the United States

___________

YONELL ALLUMS, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Second Circuit

_________

BRIEF OF PROFESSOR DOUGLAS BERMAN

AND DUE PROCESS INSTITUTE AS AMICI

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

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, CO 80202

303-830-1776

keith.bradley@squirepb.com

(i)

TABLE OF CONTENTS

Page

INTERESTS OF AMICI CURIAE ............................ 1

SUMMARY OF ARGUMENT ................................... 2

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 JuryRejected Facts....................................... 5

II.

This Case Provides an Effective

Setting to Utilize Reasonableness

Review to Guard Against

Constitutionally Problematic

Sentencing Practices. ......................... 12

III.

By Empowering Prosecutors and

Impacting All Indictments and

Pleas, this Issue is of

Foundational and Fundamental

Importance to the Operation of

the Entire Federal Justice

System. ............................................... 17

CONCLUSION ........................................................ 24

(ii)

TABLE OF AUTHORITIES

Cases

Page(s)

Alleyne v. United States,

570 U.S. 99 (2013) ....................................... 2, 6, 14

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

Colorado v. Nelson,

137 S. Ct. 1249 (2017) ........................................... 7

Duncan v. Louisiana,

391 U.S. 145 (1968) ........................................... 6, 7

Gall v. United States,

552 U.S. 38 (2007) ............................................... 12

Ice v. Oregon,

555 U.S. 160 (2009) ............................................. 15

Jones v. United States,

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

Jones v. United States,

574 U.S. 948 (2014) ..................................... 8, 9, 23

(iii)

Missouri v. Frye,

566 U.S. 134 (2012) ............................................. 18

Missouri v. Hunter,

459 U.S. 359 (1983) ............................................. 19

People v. Beck,

939 N.W.2d 213 (Mich. 2019) .............................. 11

Peugh v. United States,

569 U.S. 530 (2013) ............................................. 13

Ramos v. Louisiana,

140 S. Ct. 1390 (2020) ........................................... 6

Rita v. United States,

551 U.S. 338 (2007) ............................................. 13

Singer v. United States,

380 U.S. 24 (1965) .............................................. 5-6

Southern Union Co. v. United States,

567 U.S. 343 (2012) ......................................... 6, 11

State v. Cote,

530 A.2d 775 (N.H. 1987) .................................... 11

State v. Marley,

364 S.E.2d 133 (N.C. 1988) ................................. 11

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) ..................... 8, 9, 21

United States v. Brown,

892 F.3d 385 (D.C. Cir. 2018) ............................... 8

(iv)

United States v. Canania,

532 F.3d 764 (8th Cir. 2008) ................. 7, 9, 20, 23

United States v. Carvajal,

2005 U.S. Dist. LEXIS 3076

(S.D.N.Y. Feb. 17, 2005) ...................................... 10

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005)............. 8, 10

United States v. Faust,

456 F.3d 1342 (11th Cir. 2006) ......................... 8, 9

United States v. Gaudin,

515 U.S. 506 (1995) ........................................... 2, 6

United States v. Haymond,

139 S. Ct. 2369 (2019) ........................................... 2

United States v. Holmes,

Case No. 5:18-cr-258, Doc. 1235

(N.D.Cal., Jan. 3, 2022) ....................................... 21

United States v. Huerta-Rodriguez,

355 F. Supp. 2d 1019 (D. Neb. 2005) ............ 10, 16

United States v. Ibanga,

454 F. Supp. 2d 532 (E.D. Va. 2006)............... 7, 10

United States v. Jones,

744 F.3d 1362 (D.C. Cir. 2014) ........................... 23

United States v. Jones,

858 F. App’x 420 (2d Cir. 2021) .......................... 14

(v)

United States v. Martinez,

769 Fed. App’x. 12 (2d Cir. 2019).......................... 9

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007) ....................... 7, 9, 16

United States v. Papakee,

573 F.3d 569 (8th Cir. 2009) ................................. 7

United States v. Pimental,

367 F. Supp. 2d 143 (D. Mass. 2005) ........ 8, 10, 16

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) ............................... 8

United States v. Watts,

519 U.S. 148 (1997) ............................................... 7

Williams v. Florida,

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

Other Authorities

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

Clark Neily, A Distant Mirror: American-Style

Plea Bargaining Through the Eyes of a

Foreign Tribunal,

27 Geo. Mason L. Rev. 719 (2020) ...................... 18

(vi)

Erik Lillquist, The Puzzling Return of Jury

Sentencing: Misgivings About Apprendi,

82 N.C. L. Rev. 621 (2004) .................................. 19

U.S. Sentencing Commission, 2020 Sourcebook of

Federal Sentencing Statistics (2021).................. 13

Ira Stoll, While Decrying Misconduct,

Let’s Not Forget the Prosecutors,

The New York Sun (Feb. 2, 2022)

https://www.nysun.com/opinion/whiledecrying-misconduct-lets-not-forget/92017/ .... 21-22

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-rules-ofsentencing/ ........................................................... 23

Jim McElhatton, A $600 drug deal,

40 years in prison, The Washington Times

(Jun. 29, 2008) ..................................................... 23

An Offer You Can’t Refuse: How US Federal

Prosecutors Force Drug Defendants to Plead

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

https://www.hrw.org/report/2013/12/05/offer-youcant-refuse/how-us-federal-prosecutors-forcedrug-defendants-plead# ................................. 18-19

INTERESTS OF AMICI CURIAE 1

Professor Berman 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/

Demleitner-SentencingLawAndPolicy5), 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 (https://sentencing.typepad.com/

sentencing_law_and_policy/), which this Court and

numerous lower courts have cited.

Due Process Institute is a bipartisan nonprofit

that works to honor, preserve, and restore principles

of fairness in the criminal legal system.

They both have strong interests 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.

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

No person or entity, other than amici curiae, their members, or

their counsel, made a monetary contribution to the preparation

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

filing.

2

SUMMARY OF ARGUMENT

Yonell Allums, 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, 1515 U.S. 506, 510 (1995).

The jury acquitted Allums of the most serious charges

against him, but the judge at sentencing decided to

base sentencing calculations and his 20-year sentence

on jury-rejected facts. This case thus raises the oftrecurring issue of whether the Constitution and

reasonableness review place any limits on judicial

reliance on jury-rejected facts in federal sentencing.

As Allums’ 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 a judge relies

on jury-rejected facts to significantly increase a

sentence, the jury trial “promise” becomes empty and

this “vital” protection against the government

becomes illusory.

3

Unfortunately, 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 factual findings 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 real and

enduring meaning, the Court should grant review in

this case to properly articulate limits on judicial

authority to increase a sentence based on juryrejected facts.

As Allums’ petition makes clear, this case

provides another 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 lengthy trial resulted in jury

acquittals on some of the most serious charges against

Allums, the judge adopted factual determinations—

using the traditional civil proof standard of proof by a

mere preponderance of evidence—that contradicted

those of the jury regarding drug quantities and use of

a firearm. A circuit court thereafter affirmed this

sentence as “reasonable” without considering that it

was sanctioning a sentence that a jury had, through

its acquittals, formally and functionally disavowed.

The 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 reasonableness

review may place limits on judicial reliance on juryrejected facts. For these reasons, the Court should

grant Petitioner’s petition for a writ of certiorari.

4

ARGUMENT

After a lengthy full and fair trial, the people

exercised suffrage in this case by unanimously voting

to acquit Yonell Allums 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 judicial factual

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

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 Allums was involved in greater criminality,

effectively quintupling Allums’ Guidelines range.

The people’s role in determining the truth of the

prosecutors’ accusations was ignored; Allums’ jury

acquittal on major charges was rendered irrelevant to

the lengthy prison sentences he received.

When acquittals carry no real sentencing

consequences, prosecutors have nothing to lose (and

much to gain) from bringing multiple charges even

5

when they might expect the jury to ultimately reject

many such charges. Prosecutors can overcharge

defendants safe in the belief that they can renew their

allegations for judicial reconsideration as long as the

jury finds that the defendant did something wrong.

Under such practices, the sentencing becomes a trial,

and the trial becomes just a convenient dress

rehearsal for prosecutors. Any sentencing rules that

permit substantive 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.

This case concerns the uniquely serious and

dangerous erosion of Fifth and Sixth Amendment

substance if and whenever Guidelines ranges are

enhanced by facts clearly rejected by the jury. It may

remain possible “to give intelligible content to the

right of a jury trial,” Blakely, 542 U.S. at 305-06, when

Guidelines ranges are calculated based on facts never

contested by a jury to inform judicial sentencing

discretion. But 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

6

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”); United States v. Gaudin, 515 U.S. 506, 510

(1995); 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 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 jury-trial right as an “inestimable safeguard”

protecting the 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 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 Allums and other defendants

if and when, after being vindicated by jury verdicts of

not guilty, the prosecutors will still seek, and judges

will still calculate, enhanced Guidelines ranges based

expressly on the very same criminal allegations the

jury expressly rejected. Acquittals, in these cases, are

only formal matters; acquittals in name only with no

meaningful consequence or limit on the state’s effort

7

to punish based on the very allegation the jury

unanimously rejected. Allums 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 if and when prosecutors and judges can

effectively disregard jury findings at sentencing.

Indeed, Allums and other like defendants must find

jarring that this Court in Colorado v. Nelson ruled

that after a state 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 repeatedly

described the practice of increasing sentences based

on jury-rejected 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)

8

(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.).

Notably, a newer member of this Court

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, of course, dissented

from a denial of certiorari in a case raising this issue

in Jones v. United States, 574 U.S. 948, 948-49 (2014),

and he was joined by Justices Thomas and Ginsburg.

Justice Scalia stressed that he found a judge’s factfinding 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

9

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., United States v. Martinez, 769 Fed. App’x. 12

(2d Cir. 2019) (Pooler, J., concurring) (stating that the

district court’s practice of using acquitted conduct to

enhance a defendant’s sentence is “deeply unfair” and

runs afoul of the Sixth Amendment); United States v.

Canania, 532 F.3d 764, 776 (8th Cir. 2008) (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 928 (Millett,

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

10

concurring) (“I share Judge Millett’s overarching

concern about the use of acquitted conduct at

sentencing”).

Likewise, more than a few district courts have

concluded that crafting a sentence 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.”).

11

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). 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 30607.

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

judicial reliance on jury-rejected facts in federal

sentencings.

12

II.

This Case Provides an Effective Setting to

Utilize Reasonableness Review to Guard

Against 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 factfinding 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;

(3) any “failure to calculate the correct Guidelines

13

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.

Allums’ 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, Allums’ 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, see U.S. Sentencing Commission, 2020

Sourcebook of Federal Sentencing Statistics, Table 29

(2021), it is highly unlikely the sentencing judge in

this case would have even contemplated sentencing

Allums above the applicable 10-year statutory

minimum absent consideration of another Guidelines

range inflated by jury-rejected judicial findings.

Moreover, due to the fundamental role that the

Guidelines range still plays in reasonableness review

in every circuit, in order to sentence Allums to 240

months absent the calculation of a higher Guidelines

range based on acquitted conduct, the district judge

would have had to identify considerable aggravating

individual circumstances to warrant such a high

sentence. But, having found alleged facts that the

jury rejected, the judge here calculated a Guidelines

range of 30 years to life. Now, the 240-month, belowGuidelines sentence not only could appear

14

presumptively reasonable on appeal, see United

States v. Jones, 858 F. App’x 420, 423 (2d Cir. 2021)

(stressing imposition of “substantially belowGuidelines sentence of 240 months’ imprisonment”

while conducting reasonableness review in this case),

but it also surely enabled the sentencing judge to 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

focused here on acquitted conduct that 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.

Indeed, this fact-finding of jury-rejected facts enabled

the circuit court to summarily conclude that this

sentence was “reasonable” without even any serious

discussion of the reality that a decade of liberty

deprivation hinged on a Guidelines calculation based

on prosecutorial allegations conclusively repudiated

by the jury. See id.

In other words, the judicial fact-finding was, as

the judge applied the law in this case, “essential to the

punishment imposed.” Cf. Alleyne, 570 U.S. at 10910 (Thomas, J., plurality op.) (describing “a wellestablished 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 what 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 must be considered

constitutionally unsound.

Moreover, it seems

especially problematic that “reasonableness review”

15

in this setting gives no attention to the very

constitutional concerns that led to the Booker ruling

and its revised approach to federal sentencing.

One means to possibly “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. There may

be cases in which judicial reliance on acquitted

conduct is minor—perhaps as the basis for only a

small Guidelines enhancement or a modest sentence

increase—and in those cases it could be sound to

conclude that a sentence is “reasonable” because it

does not pose a real “threat to the jury’s domain” or

an “erosion of the jury’s traditional role.” Ice v.

Oregon, 555 U.S. 160, 169-70 (2009). But, as in the

case at bar—when judicial reliance on jury-rejected

facts doubles or triples or even more massively

increases the Guidelines range and serves as the clear

and only stated basis for a highly elevated sentence—

the sentence should be found “unreasonable” because

it is so much higher than what jury-found facts

support. At least through reasonableness review,

there must be legal check and limits on acquittedconduct 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.

Put differently, this Court could and should

consider utilizing this case as a means to define the

standard of “reasonableness” to guard against undue

16

and excessive reliance on acquitted conduct in the

calculation of Guidelines ranges and in the imposition

of federal sentences. 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 establishing a “great bulwark of

our civil and political liberties.” Apprendi, 530 U.S.

at 477, 490 n.16. As one judge has put it, the current

system “makes absolutely no sense,” because “the

Sixth Amendment is violated whenever facts

essential to sentencing have been determined by a

judge rather than a jury,” but at the same time “the

fruits of the jury’s efforts can be ignored with

impunity by the judge in sentencing.” See Mercado,

474 F.3d at 663 (Fletcher, J., dissenting) (quoting

Pimental, 367 F. Supp. 2d 143). A more practical

solution would be to curtail the use of acquitted

conduct at sentencing by removing any presumption

of reasonableness—and even adopting a presumption

of unreasonableness—for sentences in which a

Guidelines range or final sentence was significantly

enhanced based on jury-rejected facts. See, e.g.,

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.”).

17

III.

By

Empowering

Prosecutors

and

Impacting All Indictments and Pleas,

Reliance on Acquitted Conduct is of

Foundational

and

Fundamental

Importance to the Operation of the Entire

Federal Justice System.

Allowing

significant

acquitted-conductGuidelines 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 Allums’ 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 defendants 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

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

18

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”). Indeed, the prospect of future acquittedconduct

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

result in the defendant losing 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-

19

90 (December 5, 2013) (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”), https://www.hrw.org/report/2013/12/05/offeryou-cant-refuse/how-us-federal-prosecutors-forcedrug-defendants-plead#.

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 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 30607. 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 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

20

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 does not really need to 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. Prosecutors may persistently tell judges

(and the authors of a presentence report) that they

are duty-bound to wholly disregard any and all jury

acquittals, rather than reflect upon and respect the

democratic judgment represented by a jury verdict.

Judicial use of 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 trial practice diminishes the fairness of a

criminal justice system in many respects. Reliance on

acquitted conduct 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.”).

This “undermines the defendant’s

21

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).

Additionally, prosecutors are 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).

As but one recent example, we can see these

dynamics on display in the ongoing high-profile

federal case that recently resulted in a mixed trial

verdict (as many do), namely the case of Elizabeth

Holmes, the founder of blood-testing startup

Theranos. Following a lengthy trial, a jury convicted

Holmes of only four out of eleven charges. See United

States v. Holmes, Case No. 5:18-cr-258, Doc. 1235

(N.D.Cal., Jan. 3, 2022) (jury verdict). She was found

guilty of four counts of conspiracy and wire fraud

against investors, but acquitted of four counts of

conspiracy and wire fraud against patients (the jury

was hung on three other wire fraud counts). Id. As

one commentator explains, “We’ve gotten so used to

the prosecutorial practice of ‘overcharging’—throwing

everything at the defendant, in the hope that

something will stick—that the narrative was ‘Holmes

guilty,’ rather than, ‘Prosecutors fail to win conviction

on more than half of the counts.’” Ira Stoll, While

22

Decrying Misconduct, Let’s Not Forget the

Prosecutors, The New York Sun (Feb. 2, 2022)

https://www.nysun.com/opinion/while-decryingmisconduct-lets-not-forget/92017/.

Moreover, though acquitted on a number of

charges, Holmes’ acquittals are now unlikely to bear

any real significance at her sentencing. The four

counts of which she was convicted make her

functional statutory sentencing range 0 to 80 years,

and the prosecutors can and likely will ask the

presiding judge to consider in Guidelines calculations

and in the final sentencing determination all of the

allegations for those four counts that jurors

unanimously rejected. Thus, the likely calculated

range (and thus the purported “reasonable”

Guidelines range) for Ms. Holmes, under current

jurisprudence, could be much higher than one based

on those facts found by the jury. Once the jury

decided to convict on a few charges, its deliberations

and verdicts on other charges became essentially

inconsequential because a judge is expected to

calculate a range based on his own factual findings by

a preponderance without giving any regard

whatsoever to what the jury actually decided. How

this kind of sentencing reality squares with a

Constitution that twice extols the jury trial right is

what Allums’ petition squarely raises.

Finally, the allowance of acquitted-conductbased 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

23

to their task when observing that their supposedly

significant constitutional role in our justice system is

regularly undermined at sentencing and their

findings ignored without explanation. 2

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 948–49. 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]

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 27-71 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 also Jim

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

Washington

Times

(Jun.

29,

2008),

https://www.washingtontimes.com/news/2008/jun/29/a-600drug-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-6-questions-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).

2

24

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.

Respectfully submitted,

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212-872-9800

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

1801 California Street

Suite 4900

Denver, CO 80202

303-830-1776

keith.bradley@squirepb.com

February 14, 2022