Amicus Curiae Brief — Keith Pharms, Petitioner v. United States

No. 25-1086

In the Supreme Court of the United States

___________

KEITH PHARMS, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Eleventh Circuit

_________

BRIEF OF LAW PROFESSORS DOUGLAS

BERMAN, VALERIE HANS, AND ABBE SMITH

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

_________

CORRINE A. IRISH

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212 872 9800

corrine.irish@squirepb.com

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street

Suite 1825

Denver, CO 80202

303 830 1776

keith.bradley@squirepb.com

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

201 E. Fourth St.

Suite 1900

Cincinnati, OH 45202

513 361 1200

ellen.phillips@squirepb.com

Counsel for Amici Curiae

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ........................... 1

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

ARGUMENT ............................................................ 6

I.

As Justices and Judges Recognize,

the Historic Rights and

Protections of Jury Trials are

Gravely Undermined when

Sentences are Enhanced After

Acquittal. ............................................ 8

II.

This Case Is Yet Another Example

of Constitutionally Problematic

Sentencing Based on JudgeFound Facts. .................................... 12

III.

By Empowering Prosecutors and

Impacting All Indictments and

Pleas, Acquitted-Conduct

Sentencing Continues to Distort

the Operation of the Entire

Federal Justice System. ................ 14

CONCLUSION ....................................................... 20

i

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013)........................................5, 8, 12

Apprendi v. New Jersey,

530 U.S. 466 (2000)........................................2, 5, 8

Batson v. Kentucky,

476 U.S. 79 (1986)..................................................8

Blakely v. Washington,

542 U.S. 296 (2004)

...................................................... 5, 6, 8, 14, 15, 17

Duncan v. Louisiana,

391 U.S. 145 (1968)..........................................9, 14

Erlinger v. United States,

602 U.S. 821 (2024)................................ 5, 6, 7, 8, 9

Jones v. United States,

526 U.S. 227 (1999)..........................................8, 11

Jones v. United States,

574 U.S 948 (2014).........................................11, 19

McClinton v. United States,

600 U.S. ___, 143 S. Ct. 2400 (2023) .................3, 4

Missouri v. Frye,

566 U.S. 134 (2012)..............................................16

Ramos v. Louisiana,

590 U.S. 83 (2020)..................................................9

2

Singer v. United States,

380 U.S. 24 (1965)..................................................8

Southern Union Co. v. United States,

567 U.S. 343 (2012)................................................9

United States v. Bell,

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

(Kavanaugh, J. concurring) ...........................11, 16

United States v. Booker,

543 U.S. 220 (2005)......................................7, 8, 19

United States v. Brooks,

No. CR JKB-18-0408, 2024 WL

4803406 (D. Md. Nov. 15, 2024) ..........................13

United States v. Brown,

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

(Kavanaugh, J., dissenting in part) ....................11

United States v. Canania,

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

J., concurring) .......................................... 10, 18, 19

United States v. Coleman,

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

(Marbley, J.) .........................................................10

United States v. Faust,

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

(Barkett, J., concurring) ......................................10

United States v. Gaudin,

515 U.S. 506 (1995)............................................2, 8

3

United States v. Haymond,

588 U.S. 634 (2019)................................................5

United States v. Ibanga,

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

(Kelley, J.) ............................................................10

United States v. Jacques,

No. 08-CR-00577 (NCM), 2025 WL

2466994 (E.D.N.Y. Aug. 27, 2025) ......................13

United States v. Jones,

744 F.3d 1362 (D.C. Cir. 2014) ............................18

United States v. Mercado,

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

(Fletcher, J., dissenting) ......................................10

United States v. Papakee,

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

J., concurring) ......................................................10

United States v. Pimental,

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

(Gertner, J.)..........................................................10

United States v. Safavian,

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

(Friedman, J.) ......................................................10

United States v. Settles,

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

(Kavanaugh, J.)....................................................10

United States v. Sharkey,

131 F.4th 621 (8th Cir. 2025) ..............................13

4

United States v. Spivak,

No. 1:21-CR-491-1, 2025 WL

1167185 (N.D. Ohio Apr. 22, 2025) .....................13

United States v. Touray,

151 F.4th 1317 (11th Cir. 2025) ..........................12

United States v. Watts,

519 U.S. 148 (1997) (Stevens, J.,

dissenting) ............................................................10

Williams v. Florida,

399 U.S. 78 (1970)..................................................8

Statutes

18 U.S.C. § 3553(a)................................................4, 13

U.S.S.G. App. C, Amend. 826 (Nov. 1,

2024) .......................................................................3

U.S.S.G. § 1B1.3(c) ......................................................3

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, 180

(1996) ....................................................................18

Clark Neily, A Distant Mirror:

American-Style Plea Bargaining

Through the Eyes of a Foreign

Tribunal, 27 Geo. Mason L. Rev.

719, 730 (2020) .....................................................15

5

Human Rights Watch, An Offer You

Can’t Refuse: How US Federal

Prosecutors Force Drug Defendants

to Plead Guilt, Human Rights Watch

(Dec. 5, 2013)........................................................16

Jim McElhatton, A $600 drug deal, 40

years in prison, The Washington

Times (June 29, 2008) .........................................19

Jim McElhatton, “Juror No. 6” stirs

debate on sentencing, The

Washington Times (May 3, 2009) .......................19

Sentencing Law and Policy: Cases,

Statutes, and Guidelines (5th ed.

2022) .......................................................................1

INTEREST OF AMICI CURIAE1

Amici are legal scholars who teach, conduct

research, and practice in the fields of criminal law and

sentencing in the United States. Professor Douglas

Berman is the co-author of the casebook Sentencing

Law and Policy: Cases, Statutes, and Guidelines (5th

ed. 2022) and has served as an editor of the Federal

Sentencing Reporter for more than a quarter century.

Professor Berman is also the sole creator and author

of the widely-read blog, Sentencing Law and Policy,

which this Court and numerous lower courts have

cited. Professor Abbe Smith has authored numerous

works, including Guilty People (Rutgers University

Press, 2020) and Case of a Lifetime: A Criminal

Defense Lawyer’s Story (Palgrave MacMillan, 2008),

and has served on the American Board of Criminal

Lawyers since 2010. Professor Valerie Hans is one of

the nation’s leading authorities on the jury system,

and has authored or edited 10 books and over 150

research articles, including Juries, Lay Judges, and

Mixed Courts: A Global Perspective (2021) and

American Juries: The Verdict (2007).

Amici have a professional interest in ensuring

that federal sentencing law is interpreted and applied

in a manner that coherently advances its purposes

and is consistent with longstanding constitutional

principles and with contemporary function in the

criminal law.

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

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

counsel, made a monetary contribution to the preparation or

submission of this brief. All parties received timely notice of this

filing.

2

SUMMARY OF ARGUMENT

Keith Pharms, upon being accused by federal

authorities of various crimes, invoked “constitutional

protections of surpassing importance,” Apprendi v.

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

trial rights “designed ‘to guard against a spirit of

oppression and tyranny on the part of the rulers.’”

United States v. Gaudin, 515 U.S. 506, 510 (1995).

Specifically, Pharms opted to proceed to trial after

having been indicted on crimes related to a car theft

that involved a shooting. The jury convicted Pharms

of the car theft and use of a firearm during a crime of

violence under § 924(c) (subjecting him to a 5-year

mandatory minimum sentence), but expressly found

in a special verdict that Pharms did not discharge the

firearm (foreclosing the 10-year statutory minimum

of § 924(c)(1)(A)(iii) for discharging a firearm during

a crime of violence). But federal prosecutors, eager

to see Pharms punished for discharging the weapon

notwithstanding the jury’s clear and unmistakable

determination, argued at sentencing for an upward

variance based on its view of the case that the jury

plainly rejected. Relying on the different burden of

proof traditionally applied at sentencing, the district

court decided that Pharms shot the weapon, and

varied upward from the 63-78 month Guidelines

range, plus 60 months for the § 924(c) conviction, to

impose a total sentence of 192 months of

imprisonment, effectively imposing the exact same

sentence Pharms would have received if the jury had

convicted him of the more serious charge making a 10year statutory minimum applicable.

This case thus raises the oft-recurring issue of

whether the Constitution places any limits on judicial

3

fact-finding at sentencing relating to jury-rejected

facts or so-called “acquitted conduct.”

Several members of this Court flagged concerns

with acquitted conduct sentencing just three years

ago. See McClinton v. United States, 600 U.S. ___, 143

S. Ct. 2400 (2023). This Court denied certiorari in

McClinton, with Members of this Court suggesting

that it was “appropriate” to await then on-going work

by the U.S. Sentencing Commission concerning the

use of acquitted conduct in federal sentencing. Id. at

2403 (Kavanaugh J., joined by Justices Gorsuch and

Barrett, statement respecting the denial of

certiorari). Justices at that time stressed the range of

constitutional issues raised by various sentencing

practices that risk undermining Fifth and Sixth

Amendment commands. See id. at 2402 (Sotomayor,

J., statement respecting the denial of certiorari)

(discussing “concerns about procedural fairness and

accuracy when the State gets a second bite at the

apple”); see id. at 2404 n.1 (Alito, J., concurring in the

denial of certiorari) (contending “there is no relevant

difference for [constitutional] purposes between

acquitted conduct and uncharged conduct”).

In 2024, the Sentencing Commission amended the

Guidelines’ relevant conduct rules to formally exclude

from the Guidelines calculation only “conduct for

which the defendant was criminally charged and

acquitted in federal court, unless such conduct also

establishe[d], in whole or in part, the instant offense

of conviction.” U.S.S.G. App. C, Amend. 826 (Nov. 1,

2024); U.S.S.G. § 1B1.3(c). As written, the Guidelines

still leave unclear exactly when and how jury

acquittals will limit judicial enhancement of

Guideline sentencing ranges, and it is quite clear that

4

judges are still permitted (and perhaps statutorily

obligated) to rely upon acquitted conduct when

exercising their statutory sentencing discretion under

18 U.S.C. § 3553(a). That is precisely what occurred

here, with the district court imposing a sentence

roughly five years above the Guidelines range for the

charges on which the jury returned convictions.

Of course, the U.S. Sentencing Commission’s

work revising the Guidelines, and even proposals in

Congress to amend federal sentencing statutes, do not

and cannot define the constitutional guardrails that

must apply to the sentencing of criminal defendants

in state courts.

Only this Court can provide

nationwide constitutional guidance regarding how

the Fifth and Sixth Amendments impact the

consideration of acquitted or dismissed conduct in

sentencing for all criminal justice systems. See

McClinton, 143 S. Ct. at 2403 (Alito, J., concurring in

the denial of certiorari) (noting that any action by the

Commission “will not affect state courts, and

therefore the constitutional issue will remain”).

Understandably, many state courts and lower

federal courts continue to read this Court’s past

jurisprudence to call for treating judicial fact-finding

on

acquitted

conduct

at

sentencing

as

indistinguishable from any other form of judicial factfinding at sentencing. But if oft-repeated statements

about the importance of Fifth and Sixth Amendment

rights as a limit on government power are to have real

purchase—and if the text, history and traditions

embraced by the Founders of our Nation are to be

given enduring meaning—the Court should grant

review in this case to articulate sound limits on

5

judicial authority to increase a sentence based on

facts the jury clearly rejected.

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,

588 U.S. 634, 637 (2019) (plurality op.); accord

Erlinger v. United States, 602 U.S. 821 (2024); 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 directly and expressly

relies on facts a jury clearly rejected to increase a

sentence, the jury trial “promise” becomes empty and

this “vital” protection against the government

becomes illusory.

This case2 presents a timely vehicle for this Court

to grant certiorari, receive full briefing, and hear

arguments regarding important and persistent

questions that arise in many cases. The original

meaning and proper application of the jury trial right

in the Sixth Amendment and the due process right in

the Fifth and Fourteenth Amendments with respect

to judicial punishment increases based on acquitted

conduct should be directly addressed.

2 Amici also filed a brief in support of the petition in Ghanem v.

United States, Case No. 25-970, which remains pending. Amici

posit that the two cases, raising different facets of the same

fundamental Fifth and Sixth Amendment concerns, each present

timely vehicles for resolving the scope of how judges may rely on

facts related to charges a jury expressly rejected or that were

dismissed by prosecutors without securing a valid conviction.

6

For these reasons, the Court should grant

Pharms’s petition for a writ of certiorari.

ARGUMENT

After a full and fair trial, the people exercised

suffrage in this case by unanimously voting in a

special verdict that Pharms did not discharge a

firearm during the car theft for which he was

convicted. This should have relieved Pharms from

facing a 10-year mandatory minimum sentence

imposed for a conviction based on discharging a

firearm during a crime of violence under § 924(c).

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 requested an

upward variance based on a judicial factual

inquisition regarding its allegation that Pharms

discharged the firearm—notwithstanding the

uncontested reality that this fact had been expressly

rejected by the jury. Rather than respecting that the

Constitution places “the jury at the heart of our

criminal justice system,” Erlinger, 602 U.S. at 831,

federal prosecutors encouraged the district court to

sentence Pharms in exactly the same way as if he had

been convicted of having discharged the firearm. The

district court embraced the prosecution’s view that

the jury verdict was irrelevant when sentencing

Pharms to 192 months of imprisonment, effectively

imposing the exact same sentence Pharms would

have received if the jury had convicted him of the

more serious charge making a 10-year statutory

minimum applicable.

7

Such blatant disregard of the jury’s role and work

in the United States’ criminal justice system is

inconsistent with the text of the Constitution and the

traditions the Framers championed. The sentencing

process in this case suggests prosecutorial and

judicial views of the Fifth and Sixth Amendments 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.”

United

States v. Booker, 543 U.S. 220, 237 (2005); see also

Erlinger, 602 U.S. at 832 (stressing that Fifth and

Sixth Amendment “principles represent not

procedural formalities but fundamental reservations

of power to the American people” (cleaned up)).

Despite the constitutional issues presented by

upward sentencing variances based on conduct

expressly rejected by the jury, the district judge relied

upon jury-rejected facts to impose a sentence on

Pharms that was roughly five years longer than the

Guidelines range for his conviction. The people’s role

in determining the truth of the prosecutors’

accusations was ignored; the jury’s factual findings

were nullified by the judge through his sentencing

decision-making.

When jury acquittals carry no real sentencing

consequences, prosecutors have nothing to lose (and

much to gain) from bringing multiple charges even

when they might expect the jury to ultimately reject

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

merely as just a first bite at the apple, offering

prosecutors a chance to present their case to the jury

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

8

sentencing judge so long as the jury finds the

defendant guilty of at least one charge. 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 trial right

enables overzealous prosecutors to run roughshod

over the traditional democratic checks of the

adversarial criminal process that the Framers built

into the U.S. Constitution. See Erlinger, 602 U.S. at

832 (stressing how the jury trial right seeks to

“mitigate the risk of prosecutorial overreach and

misconduct, including the pursuit of ‘pretended

offenses’ and ‘arbitrary convictions’” (quoting The

Federalist No. 83, p. 499 (C. Rossiter ed. 1961))).

I.

As Justices and Judges Recognize, the

Historic Rights and Protections of Jury

Trials are Gravely Undermined when

Sentences are Enhanced After Acquittal.

This Court has repeatedly emphasized that the

jury-trial right is “clearly intended to protect the

accused from oppression by the Government.” Singer

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

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

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

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

the arbitrary exercise of power by prosecutor or

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

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

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

oppression and tyranny on the part of rulers,” and

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

9

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

intermediary between the State and criminal

defendants”). This Court has described the jury-trial

right as an “inestimable safeguard” protecting a

defendant “against the corrupt or overzealous

prosecutor and against the compliant, biased, or

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

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

“fundamental to the American scheme of justice.”

Ramos v. Louisiana, 590 U.S. 83, 93 (2020) (quoting

Duncan, 391 U.S. at 148–50). As “the framers

appreciated,” the jury safeguards are “anchor[s]

essential to prevent a slide back toward regimes like

the vice-admiralty courts [the Framers] so despised.”

Erlinger, 602 U.S. at 832 (quoting Letter from T.

Jefferson to T. Paine (July 11, 1789), reprinted in 15

Papers of Thomas Jefferson 266, 269 (J. Boyd ed.

1958)).

Yet 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 Pharms and other defendants

when, after being vindicated by jury findings,

prosecutors are still permitted to seek, and judges are

still permitted to impose, increased sentences based

on the very same allegations the jury rejected.

Convictions, in these cases, are only formal matters;

there is no limit on the state’s effort to punish based

on allegations a jury rejected. Pharms and other

defendants subject to sentences enhanced by juryrejected facts are left to wonder just what kind of

“bulwark” or “safeguard” the Fifth and Sixth

Amendments truly provide if and when prosecutors

10

and judges can entirely disregard jury findings.

When prosecutors are empowered to pursue

procedural loopholes in the operation of our criminal

justice system, they are emboldened to view

constitutional rights as mere tripwires to be avoided

whenever and however possible.

Recognizing the fundamental tension between

sentence enhancements based on acquitted conduct

and giving real meaning to jury trial rights, Justices

of this Court and lower court judges have described

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

“Kafka-esque,”

“uniquely

malevolent,”

and

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

170 (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,

777 (8th Cir. 2008) (Bright, J., concurring); United

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

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

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

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

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

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

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

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

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

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

Notably, Justice Kavanaugh repeatedly

recognized problems with acquitted conduct

enhancements while serving as a Circuit Judge. In

2008, then-Judge Kavanaugh rightly described

reliance on acquitted conduct as “unfair,” United

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

11

(Kavanaugh, J.), and “a dubious infringement of the

rights to due process and to a jury trial.” United

States v. Bell, 808 F.3d 926, 928 (D.C. Cir. 2015)

(Kavanaugh, J. concurring). Tellingly, then-Judge

Kavanaugh suggested the Supreme Court might see

fit to “fix” this problem because there were “good

reasons to be concerned about the use of acquitted

conduct at sentencing, both as a matter of appearance

and as a matter of fairness.” United States v. Brown,

892 F.3d 385, 415 (D.C. Cir. 2018) (Kavanaugh, J.,

dissenting in part).

The late-Justice Scalia, joined by Justices

Thomas and Ginsburg, dissented from a denial of

certiorari in a case raising this issue in Jones v.

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

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

that significantly increased a drug defendant’s

sentence to be especially concerning when based on

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

particularly appealing case” for review “because not

only did no jury convict these defendants of the

offense the sentencing judge thought them guilty of,

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

(emphasis in original).

This case, too, is “a particularly appealing case”

for review. Here a jury expressly and unanimously

rejected the prosecution’s allegation that Pharms

discharged a firearm; the district judge followed the

prosecution’s recommendation to disregard the jury’s

conclusion and sentenced Pharms as though he were

the shooter. Pharms was not afforded the protections

guaranteed by the Fifth and Fourteenth

Amendments, but was sentenced above what was

reasonable given the verdicts returned by the jury.

12

Judge-found and jury-rejected facts significantly

enhanced the amount of prison time imposed on

Pharms; his punishment was not the result of a sound

sentencing process based on the results of a jury trial

involving Pharms’s peers as the Constitution

guarantees.

II.

This Case Is Yet Another Example of

Constitutionally Problematic Sentencing

Based on Judge-Found Facts.

Pharms’ case demonstrates clearly how judicial

fact-finding can still drive sentencing outcomes that

are not supported by sound jury verdicts even after

the Sentencing Commission’s recent amendment to

the Guidelines. The district judge expressly based a

significant upward variance on facts that the jury

clearly rejected. Critically, the sentencing below

made clear that the judge’s fact-finding that Pharms

discharged the firearm, contradicting the jury’s

conclusion, was “essential to the punishment

imposed.” 1 J. Bishop, Criminal Procedure 50 (2d ed.

1872); cf. Alleyne, 570 U.S. at 109–10 (Thomas, J.,

plurality op.) (describing the significance of “a wellestablished practice of . . . submitting to the jury,

every fact that was a basis for imposing or increasing

punishment”).

Though the U.S. Sentencing Commission has now

amended the Guidelines to exclude acquitted conduct

from being considered in Guidelines calculations in

some circumstances, there are still many defendants

like Pharms serving longer, constitutionally-suspect

sentences based on judge-found facts related to

acquitted conduct. See, e.g., United States v. Touray,

151 F.4th 1317 (11th Cir. 2025) (upholding sentence

13

based on acquitted conduct based on the preamendment Guidelines); United States v. Sharkey,

131 F.4th 621, 623 (8th Cir. 2025) (holding that the

sentencing court was not required “to apply proposed

amendments to the Sentencing Guidelines that would

prohibit consideration of acquitted conduct”).

Moreover, judges have noted the various situations in

which the new Guidelines amendment does not

preclude a sentence lengthened based on acquitted

conduct, whether in consideration of the statutory

§ 3553(a) factors or in consideration of conduct that

underlies both acquitted and convicted offenses. See,

e.g., United States v. Jacques, No. 08-CR-00577

(NCM), 2025 WL 2466994, at *2–3 (E.D.N.Y. Aug. 27,

2025) (where defendant was acquitted of importing

and possessing five kilograms or more of cocaine but

convicted only of 500 grams or more, sentencing court

held it could still sentence based on large quantity

because “the same conduct underlies both a convicted

and acquitted offense”); United States v. Spivak, No.

1:21-CR-491-1, 2025 WL 1167185, at *3 (N.D. Ohio

Apr. 22, 2025) (holding that, notwithstanding

Guidelines amendment, “when calculating the

guideline range, a court may consider any evidence of

the total loss within the scope of the conspiracy, even

if a jury acquitted a defendant of some conduct

accounting for some specific losses”); United States v.

Brooks, No. CR JKB-18-0408, 2024 WL 4803406, at

*3 (D. Md. Nov. 15, 2024) (“while Amendment 826

prohibits the consideration of acquitted conduct in

determining the Guidelines range, nothing in

Amendment 826 precludes the Court’s consideration

of conduct in assessing the § 3553(a) factors”).

14

The Guidelines amendment thus has not

resolved the constitutional problems with sentencing

based on acquitted conduct.

Despite the U.S.

Sentencing Commission’s sound effort to address one

problematic aspect of acquitted-conduct sentencing,

this Court will continue to receive petitions from

federal and state defendants asserting their

constitutional rights were violated by judicial

sentencing based on judge-found facts related to

charges for which a defendant was acquitted. It is

time for this Court to take up these issues, and

Pharms’s case provides a fitting and timely

opportunity to do so.

III.

By

Empowering

Prosecutors

and

Impacting All Indictments and Pleas,

Acquitted-Conduct Sentencing Continues

to Distort the Operation of the Entire

Federal Justice System.

Allowing significant sentencing increases based

on acquitted conduct undermines the Framers’ vision

of American criminal justice values by taking libertyprotecting authority away from the people and giving

it to the state and its agents. See Blakley, 542 U.S. at

306 (“Just as suffrage ensures the people’s ultimate

control in the legislative and executive branches, jury

trial is meant to ensure their control in the

judiciary.”) From Pharms’s and similar defendants’

perspectives, the jury trial right does not “prevent

oppression by the Government,” Duncan, 391 U.S. at

155, but is rather a mere formality that can be

disregarded if the prosecutors manage to convince

another government agent to punish a defendant for

acquitted conduct. When a sentence can be based on

conduct the jury expressly rejected, a jury trial

15

regarding disputed allegations serves merely as a

dress rehearsal for a prosecutor to show a judge why

an individual should be punished regardless of the

jury verdict. Not only does allowing acquittedconduct sentencing degrade a fundamental

constitutional right, it also undermines confidence in

the entire criminal justice system.

Indeed, acquitted conduct sentencing provides

prosecutors with significant benefits (and no obvious

costs) by allowing them to allege and pursue any and

every charge at their disposal among “the sprawling

scope of most criminal codes,” and to pursue the

presentation of all manner of allegations without real

concern for legal or procedural trial rules intended to

prevent illegal and wrongful convictions. Blakely, 542

U.S. at 311. Even a wholly inadequate charge

rejected by a jury (or a completely invalid conviction

successfully challenged on appeal) will provide a

criminal defendant no relief from prosecutorial

overreach if sentencing doctrines pay no heed to jury

verdicts. The opportunity to circumvent a jury’s work

enables overzealous prosecutors to run roughshod

over the traditional democratic checks of the

adversarial and law-based 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 later seeking to make their case

to a sentencing judge. 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

16

they know there will be no real sentencing

consequences even upon a jury acquittal or appellate

reversal of most charges. See Clark Neily, A Distant

Mirror: American-Style Plea Bargaining Through the

Eyes of a Foreign Tribunal, 27 Geo. Mason L. Rev.

719, 730 (2020) (“American prosecutors possess a

wide array of levers that they can—and routinely do—

bring to bear on defendants to persuade them to waive

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

. . [including] threatening to use uncharged or even

acquitted conduct to enhance a defendant’s

sentence”). Prosecutors are functionally encouraged

to over-charge defendants and even have little

concern for legally or factually suspect charges,

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 . .

. .” United States v. Bell, 808 F.3d 926, 932 (2015)

(Millett. J, concurring).

Indeed, the prospect of future sentences based on

acquitted conduct 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 sentencing benefit, but likely

will preclude the defendant from receiving any

sentencing credit for accepting responsibility. It is

little wonder plea bargaining now “is the criminal

justice system,” Missouri v. Frye, 566 U.S. 134, 144

(2012) (emphasis in original), 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

17

trial. See generally Human Rights Watch, An Offer

You Can’t Refuse: How US Federal Prosecutors Force

Drug Defendants to Plead Guilty, Human Rights

Watch,

78–90

(Dec.

5,

2013),

https://www.hrw.org/report/2013/12/05/offer-youcant-refuse/how-us-federal-prosecutors-force-drugdefendants-plead (noting that “analysis of trial data

suggests that even defendants with strong cases and

good chances of acquittal at trial are choosing to plead

because of the enormous sentencing benefit of doing

so compared to the sentencing risks they face should

they lose at trial”).

Second, at criminal trials, prosecutors can

continue to pursue any and every possible charge, and

try their case without regard for procedural or legal

safeguards, knowing that acquittals (or even vacaturs

on appeal) carry no real sentencing consequences.

Doing so, even if the evidence supporting many

charges may be weak or becomes legally suspect,

enables prosecutors to increase the chances that a

jury will be drawn into “making a determination that

the defendant at some point did something wrong.”

Blakely, 542 U.S. at 307. 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,

prosecutors can and often will become even more

18

aggressive in the presentation of offense allegations

and related accusations. Prosecutors can persistently

tell judges (and the authors of a presentence report)

that they must disregard any and all jury acquittals

rather than reflect upon and respect the democratic

judgment and legal norms. This practice diminishes

the fairness of a criminal justice system in many

respects and affords the Government two bites at the

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

concurring) (“We have a sentencing regime that

allows the Government to try its case not once but

twice. The first time before a jury; the second before a

judge.”). This reality “undermines the defendant’s

fundamental interest in verdict finality, exposing the

defendant to a second mini-trial on conduct

underlying the count of acquittal in contravention of

principles underlying the Fifth and Sixth

Amendments.” Barry L. Johnson, If at First You

Don’t Succeed—Abolishing the Use of Acquitted

Conduct in Guidelines Sentencing, 75 N.C. L. Rev.

153, 180 (1996).

Finally, the allowance of sentences based on

conduct rejected by a jury 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 for public

service to advance justice, are unlikely to be dedicated

to their task when their supposedly significant

constitutional role in our system is regularly

undermined at sentencing.3

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

Antwaun Ball, who was sentenced to 225 months in prison based

on an acquitted-conduct Guidelines range after the jury

3

19

As this and similar cases demonstrate, the

practice of judges significantly increasing sentences

based on judge-found and jury-rejected facts “has

gone on long enough.” Jones v. United States, 574

U.S. 948, 949 (2014) (Scalia, J., dissenting, joined by

Thomas, J., and Ginsburg, J.). Amici believes this

Court should grant certiorari in Petitioner’s case in

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

be preserved, in a meaningful way guaranteeing that

the jury [will] still stand between the individual and

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

237.

acquitted him of all but one charge, the Guidelines range for

which would have been 57–71 months. See United States v.

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

heightened sentence, the juror wrote to the judge to comment

that it was a “tragedy that one is asked to serve on a jury, serves,

but then finds their work may not be given the credit it

deserves,” and lamented that the “defendants are being

sentenced not on the charges for which they have been found

guilty but on the charges for which the District Attorney’s office

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

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

Washington

Times

(June

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-6questions-rules-of-sentencing/. He detailed the toll of jury

service, and the disappointment when the result of that toll falls

on deaf ears: “What does it say to our contribution as jurors when

we see our verdicts, in my personal view, not given their proper

weight.” Canania, 532 F.3d at 778 n.4 (Bright, J., concurring)

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

20

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street, Ste. 1825

Denver, Colorado 80202

CORRINE A. IRISH

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

corrine.irish@squirepb.com

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

201 E. Fourth St., Ste. 1900

Cincinnati, OH 45202

ellen.phillips@squirepb.com

April 17, 2026