Petition for Writ of Certiorari — Lamont Coleman, Petitioner v. United States

Supreme Court briefAug 13, 2025

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No. ________

IN THE

Supreme Court of the United States

_____________________

LAMONT COLEMAN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

_____________________

PETITION FOR A WRIT OF CERTIORARI

_____________________

THOMAS W. PATTON

Federal Public Defender

MICHAEL WILL ROY

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL PUBLIC DEFENDER

1515 4th Ave, Suite 201

Rock Island, Illinois 61201

Phone: (309) 948-7190

Email: michael_roy@fd.org

Counsel for Petitioner

QUESTION PRESENTED

Whether the Fifth and Sixth Amendments prohibit a federal court from

basing a criminal defendant’s sentence on conduct for which a jury has acquitted

the defendant.

LIST OF PARTIES

All parties appear in the caption of the case on the cover page.

RELATED PROCEEDINGS

United States Court of Appeals (7th Cir.):

United States v. Coleman, No. 23-2617, (May 15, 2025).

United States District Court (N.D. Ind.):

United States v. Coleman, No. 2:18-cr-00101-TLS-JEM-1, (August 3, 2023).

ii

TABLE OF CONTENTS

Question Presented.....................................................................................................i

List of Parties ............................................................................................................ii

Related Proceedings...................................................................................................ii

Table Of Contents .....................................................................................................iii

Index To Appendix ..................................................................................................... v

Table Of Authorities Cited........................................................................................ vi

Petition for Writ of Certiorari .................................................................................... 1

Decisions Below ......................................................................................................... 1

Jurisdiction ................................................................................................................ 1

Constitutional Provisions Involved ............................................................................ 1

Introduction ............................................................................................................... 2

Statement Of The Case .............................................................................................. 4

I.

History of acquitted-conduct sentencing in the United States ......... 4

II.

The District Court proceedings in this case ................................... 11

A.

Following trial, the jury returns a mixed verdict. ................ 12

B.

The district court relies on acquitted conduct at

sentencing. ........................................................................... 15

III.

The Sentencing Commission amends the Sentencing Guidelines. . 17

IV.

The Seventh Circuit’s decision ....................................................... 17

Reasons For Granting The Petition ......................................................................... 20

I.

This Court’s intervention is necessary to resolve a deepening

split on a cornerstone constitutional right. .................................... 20

II.

The Sentencing Commission’s 2024 amendment regarding

acquitted conduct does not solve the issue. .................................... 22

III.

The decision below is wrong. .......................................................... 25

A.

Allowing acquitted conduct to be considered at sentencing

violates the Sixth Amendment. ............................................ 25

iii

IV.

B.

Allowing acquitted conduct to be considered at sentencing

violates the Due Process Clause of the Fifth Amendment. .. 27

C.

To the extent that Watts controls this case, this Court

should overrule Watts. ......................................................... 29

This case is a good vehicle to resolve the constitutionality of

acquitted conduct. .......................................................................... 31

Conclusion ............................................................................................................... 34

iv

INDEX TO APPENDIX

Appendix A

Decision of the U.S. Court of Appeals

for the Seventh Circuit................................................................... 1a

Appendix B

Opinion and Order of the U.S. District Court for the

Northern District of Indiana, July 21, 2022 ................................. 41a

Appendix C

Sentencing Hearing Transcript, before the U.S. District Court

for the Northern District of Indiana, August 3, 2023 ................... 71a

Appendix B

Judgment in a Criminal Case,

August 3, 2023 ............................................................................. 98a

v

TABLE OF AUTHORITIES CITED

Cases

Alleyne v. United States, 570 U.S. 99 (2013) ........................................................ 8, 30

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

Batson v. Kentucky, 476 U.S. 79 (1986) .................................................................... 25

Blakely v. Washington, 542 U.S. 296 (2004) .............................................. 8, 25, 27, 30

Braxton v. United States, 500 U.S. 344 (1991) ......................................................... 21

Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670) ......................................................... 5

Cunningham v. California, 549 U.S. 270 (2007) ...................................................... 30

Duncan v. Louisiana, 391 U.S. 145 (1968) ................................................................. 4

Hurst v. Florida, 577 U.S. 92 (2016) ........................................................................ 30

In re Winship, 397 U.S. 358 (1970) .......................................................................... 27

Jones v. United States, 574 U.S. 948 (2014) .............................................. 9, 18, 27, 30

McClinton v. United States, 143 S. Ct. 2400 (2023) ..........................................passim

People v. Beck, 939 N.W.2d 213 (Mich. 2019) ............................................... 20, 22, 28

Ring v. Arizona, 536 U.S. 584 (2002) ....................................................................... 30

S. Union Co. v. United States, 567 U.S. 343 (2012) ............................................ 25, 30

State v. Cobb, 732 A.2d 425 (N.H. 1999) .................................................................. 21

State v. Cote, 530 A.2d 775 (N.H. 1987). .................................................................. 28

State v. Marley, 364 S.E.2d 133 (N.C. 1988) ...................................................... 21, 28

State v. Melvin, 258 A.3d 1075 (N.J. 2021) .............................................................. 21

State v. Satoafaiga, 150 Haw. 406, 418, 504 P.3d 324 (2022) .................................. 21

vi

State v. Witmer, 10 A.3d 728, 733 (Maine 2011) ................................................ 21, 24

United States ex rel. McCann v. Adams, 126 F.2d 774 (2d Cir. 1942) ...................... 26

United States v. Austin, 806 F.3d 425 (7th Cir. 2015) .............................................. 16

United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015) ............................................ 9, 28

United States v. Booker, 543 U.S. 220 (2005) ............................................ 7, 24, 29, 30

United States v. Brown, 892 F.3d 385 (D.C. Cir. 2018) ............................................ 24

United States v. Canania, 532 F.3d 764 (8th Cir. 2008)..................................... 26, 28

United States v. Faust, 456 F.3d 1342 (11th Cir. 2006) ........................................... 28

United States v. Haymond, 139 S. Ct. 2369 (2019)............................................... 4, 30

United States v. McClinton, 23 F.4th 732 (7th Cir. 2022) ........................................ 22

United States v. Mercado, 474 F.3d 654 (9th Cir. 2007) ..................................... 26, 29

United States v. Price, 418 F.3d 771 (7th Cir. 2005) ................................................ 22

United States v. Robinson, 62 F.4th 318 (7th Cir.)..................................................... 9

United States v. Sabillon-Umana, 772 F.3d 1328 (10th Cir. 2014) ............................ 9

United States v. Settles, 530 F.3d 920 (D.C. Cir. 2008) ............................................ 26

United States v. Waltower, 643 F.3d 572 (7th Cir. 2011) ......................................... 22

United States v. Watts, 519 U.S. 148 (1997) ......................................................passim

Williams v. Florida, 399 U.S. 78 (1970) ..................................................................... 6

Williams v. New York, 337 U.S. 241 (1949) ................................................................ 7

Yeager v. United States, 557 U.S. 110 (2009) ....................................................... 6, 26

Statutes

18 U.S.C. § 3553................................................................................................. 17, 33

vii

18 U.S.C. § 3661................................................................................................. 23, 34

Other Authorities

2 Diary & Autobiography of John Adams 3 (L. Butterfield ed. 1961)......................... 4

4 William M. Blackstone, Commentaries On The Laws Of England 342 (1769) ........ 5

Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the

United States, 61 U. CHI. L. REV. 867 (1994) ........................................................ 5

Claire McCusker Murray, Hard Cases Make Good Law: The Intellectual History of

Prior Acquittal Sentencing, 84 St. John’s L. Rev. 1415 (2011)............................ 4, 6

Proposed Amendments to the Federal Sentencing Guidelines Before the U.S.

Sentencing Comm’n, 2:08:05 (Feb. 24, 2023) ........................................................ 23

The Federalist No. 83 ................................................................................................. 6

Thomas Andrew Green, Verdict According To Conscience: Perspectives On The

English Criminal Trial Jury, 1200-1800, 236 (1985) ............................................. 5

U.S. Const. Amend. V .............................................................................................. 27

U.S. Sup. Ct. R. 10(b) ............................................................................................... 21

U.S.S.G. § 1B1.3........................................................................................... 17, 22, 23

U.S.S.G. § 3B1.1................................................................................................. 16, 31

U.S.S.G. App. C, Amend. 826 (Nov. 1, 2024) ............................................................ 17

U.S.S.G. Ch. 5 Pt. A ........................................................................................... 17, 33

viii

PETITION FOR WRIT OF CERTIORARI

Petitioner Lamont Coleman respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Seventh Circuit.

DECISIONS BELOW

The Seventh Circuit’s opinion is published at 138 F.4th 489 and included as

Appendix A. The district court’s criminal judgment is unpublished and included as

Appendix D. The district court’s written order on sentencing objections is

unpublished and included as Appendix B. The transcript of the final sentencing

hearing is unpublished and included as Appendix C.

JURISDICTION

The Seventh Circuit entered judgment on May 15, 2025. (App. 1a.) Neither

side petitioned for rehearing. This petition is filed within 90 days of the May 15,

2025 judgment. This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The jury clause of Article III of the Constitution states:

The Trial of all Crimes, except in Cases of Impeachment,

shall be by Jury; and such Trial shall be held in the State

where the said Crimes shall have been committed; but

when not committed within any State, the Trial shall be at

such Place or Places as the Congress may by Law have

directed.

U.S. Const. art. III, § 2, cl. 3.

The Fifth Amendment to the United States Constitution provides, in relevant

part:

No person shall … be subject for the same offense to be

twice put in jeopardy of life or limb; … nor be deprived of

life, liberty, or property, without due process of law…

U.S. Const. amend. V.

The Sixth Amendment to the United States Constitution 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.

INTRODUCTION

After reading the question presented, experienced members of this Court will

already know exactly what this petition is about. Once again, a defendant accused

of multiple crimes exercised his right to trial and received a mixed verdict from a

jury. And once again, something “quite strange” happened after the verdict.

McClinton v. United States, 143 S. Ct. 2400, 2401 (2023) (Sotomayor, J., statement

respecting the denial of certiorari).

Notwithstanding the jury verdict, the government argued that the district

court should punish the defendant for conduct for which he was acquitted. And the

district court agreed that doing so was appropriate because, under Seventh Circuit

law, a court may punish a defendant for conduct proved by a mere preponderance of

the evidence even if a jury has explicitly found that conduct not proven beyond

reasonable doubt.

2

The practice of sentencing federal defendants based on acquitted conduct is a

perennial issue presented to this Court. As the Seventh Circuit noted in this case, at

least nine Supreme Court justices have, over the course of various time periods,

expressed some level of concern with the practice (App. 38a.) Most recently, when

this Court denied certiorari in McClinton, several justices wrote to highlight how

acquitted-conduct sentencing implicates important constitutional concerns. 143 S.

Ct. 2400. Members of this Court voted not to take the issue then, however, because

the Sentencing Commission was already considering an amendment to the

Sentencing Guidelines to address the issue.

The guideline amendment has since come out, and it does not resolve the

issue. The guideline is not retroactive, so it does not benefit defendants like the

petitioner who were sentenced based on acquitted conduct before the amendment.

For prospective cases, the amended guideline is a half measure that prohibits

acquitted-conduct sentencing in some—but not all—cases. So, acquitted-conduct

sentencing will continue in federal courts even after the amendment. And the new

guideline will have no effect whatsoever in state courts, where jurisdictions are split

as to whether acquitted-conduct sentencing violates the United States Constitution.

The time has come for this Court to finally address the issue. Acquittedconduct sentencing is not compatible with a historical understanding of the jury

right. And without this Court’s intervention, jurisdictions will remain split over the

constitutionality of the practice. This Court should grant the petition for certiorari.

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STATEMENT OF THE CASE

I.

History of acquitted-conduct sentencing in the United States

The practice of sentencing defendants based on acquitted conduct—conduct

for which a jury has specifically found the defendant not guilty—is a relatively new

phenomenon in the history of jury trials. Acquitted-conduct sentencing developed in

the late 20th century, and courts viewed any extra-trial evidence at sentencing as

“constitutionally suspect” prior to 1970. See Claire McCusker Murray, Hard Cases

Make Good Law: The Intellectual History of Prior Acquittal Sentencing, 84 St.

John’s L. Rev. 1415, 1418, 1421–58 (2011). To the founding fathers, the concept of

acquitted-conduct sentencing would seem an alien interloper from outside the

Anglo-American legal tradition.

Long before our country’s founding, the right to a jury trial developed as a

check against “the corrupt or overzealous prosecutor and against the compliant,

biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156 (1968). “Just as

the right to vote sought to preserve the people’s authority over their government’s

executive and legislative functions, the right to a jury trial sought to preserve the

people’s authority over its judicial functions.” United States v. Haymond, 139 S. Ct.

2369, 2375 (2019) (citing J. Adams, Diary Entry (Feb. 12, 1771), in 2 Diary &

Autobiography of John Adams 3 (L. Butterfield ed. 1961). And when it came time to

found this Country, the Framers drew from a common-law history of absolute

deference to jury acquittals.

4

A landmark pre-colonial decision cementing the sanctity of jury acquittals

was Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670), in which the Court of Common

Pleas granted a writ of habeas corpus to a juror imprisoned for refusing to convict

William Penn. This case established the authority of jurors to acquit a defendant

even against the wishes of the Crown. Thomas Andrew Green, Verdict According To

Conscience: Perspectives On The English Criminal Trial Jury, 1200-1800, at 236-49

(1985). In the same tradition, the role of common-law juries also went beyond mere

guilt determination; jurors were well-informed about specific penalties and often

tailored their verdicts to prevent excessive punishment. See 4 William M.

Blackstone, Commentaries On The Laws Of England 342-44 (1769) (juries often

found value of stolen goods to be less than twelvepence to avoid mandatory death

penalty for theft of more valuable goods). These powers carried over into the

colonies, where the unassailable right of jurors to acquit the accused was firmly

established. For instance, juries and grand juries “all but nullified the law of

seditious libel in the colonies,” regularly refusing to convict defendants who were

factually guilty of criticizing royal authorities. Albert W. Alschuler & Andrew G.

Deiss, A Brief History of the Criminal Jury in the United States, 61 U. CHI. L. REV.

867, 873-74 (1994).

The Framers adopted this history when they ratified the jury right into the

Constitution. Indeed, the idea of these rights was not controversial. Alexander

Hamilton observed that supporters and opponents of the Constitution “concur[red]

at least in the value they set upon the trial by jury,” regarding it as either “a

5

valuable safeguard to liberty” or “the very palladium of free government.” The

Federalist No. 83. And the Framers felt so strongly about protecting the jury right

that they codified it not once, but twice in Constitution. Following the jury right’s

inclusion in Article III of the Constitution, the Framers enshrined it again in the

Sixth Amendment to address concerns that Article III language’s was insufficient to

incorporate all features of the jury that had existed at common law. See Williams v.

Florida, 399 U.S. 78, 92 (1970).

Because the Constitution adopted the common-law understanding that jury

acquittals were “unassailable” in their finality, Yeager v. United States, 557 U.S.

110, 123 (2009), acquitted-conduct sentencing was not a feature of the early

republic. “[T]here appears to be little record of acquitted-conduct sentencing before

the 1970s.” McClinton v. United States, 143 S. Ct. 2400, 2402 (2023) (Sotomayor, J.,

statement respecting the denial of certiorari) (citing C. Murray, 84 St. John’s L.

Rev. at 1444, 1427–1437, 1450–1455). The practice became normalized only after

the creation of the Sentencing Guidelines, which directed courts to go beyond

convicted conduct and consider all “relevant conduct” without limitation at

sentencing. C. Murray, 84 St. John’s L. Rev. at 1451–52.

As acquitted-conduct sentencing started to spread under the Sentencing

Guidelines, one case eventually made its way to this Court. In United States v.

Watts, 519 U.S. 148, 149–50 (1997), a jury convicted the defendant of possessing

cocaine base with intent to distribute but acquitted him of using a firearm in

furtherance of that crime. At sentencing, the district court enhanced the defendant’s

6

guideline range after finding by a preponderance of the evidence that, contrary to

the jury’s verdict, the defendant had used firearms in furtherance of the drug crime.

Id. at 150.

The defendant argued on appeal that the consideration of acquitted conduct

at sentencing violated his Fifth Amendment right against Double Jeopardy. See id.

But this Court disagreed, holding hold that the Double Jeopardy clause was not

implicated because Watts was not punished for the conduct he was acquitted of at

trial; instead, the sentencing judge used that information to determine an

appropriate sentence based upon Watts’ life and characteristics. Id. at 151–52

(quoting Williams v. New York, 337 U.S. 241, 247 (1949)). See also id. at 154–55.

The Watts decision did not, however, represent a complete analysis of the

constitutionality of acquitted-conduct sentencing. This Court issued a summary

disposition, without full briefing or oral argument. See id. at 171 (Kennedy, J.,

dissenting). And the Watts Court considered only the presented question of the

practice’s constitutionality under the Double Jeopardy Clause; it did not address

whether the judgment violated the Sixth Amendment, Article III’s jury clause, or

the Due Process Clause of the Fifth Amendment. See United States v. Booker, 543

U.S. 220, 240 n.4 (2005).

Moreover, only three years after Watts, this Court’s decision in Apprendi v.

New Jersey, 530 U.S. 466, 469-70 (2000), launched a new line of opinions that

strengthened the jury right and returned it to its historical roots. Apprendi held

that any fact expanding a statutory punishment range must be determined by a

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jury and proved beyond a reasonable doubt with only prior convictions excepted. Id.

This Court reinforced Apprendi’s constitutional mandate four years later in Blakely

v. Washington, 542 U.S. 296, 303–04 (2004), which confirmed that any statutory

maximum must be based solely on facts found by the jury or admitted by the

defendant. And in Alleyne v. United States, 570 U.S. 99, 114–17 (2013), this Court

reached the same conclusion for statutory minimum sentences and confirmed that,

whenever judicial factfinding “alters the legally prescribed punishment,” a

constitutional violation occurs regardless of whether the enhanced sentence falls

within the original statutory range.

This Court’s post-Apprendi decisions established a fundamental principle

that judicial factfinding alone cannot alter a statutory punishment range.

See Apprendi, 530 U.S. at 477. At the same time, however, sentencing courts

continued to use judicial findings to calculate the Sentencing Guidelines—including

judicial findings that directly contradicted the jury’s verdict. Although Watts

addressed only a Double Jeopardy challenge to acquitted-conduct sentencing, many

courts read its holding broadly to endorse the consideration of acquitted conduct at

sentencing. See McClinton, 143 S. Ct. at 2405 (Alito, J. Concurring in denial of

certiorari) (collecting decisions that impliedly recognize a broader holding from

Watts). And this Court’s more recent opinions have not changed Watts’s effect. The

Seventh Circuit, where Lamont Coleman was convicted, has long relied on Watts—

both before and after Apprendi, Blakely, and Alleyne—to reject any argument that

the Constitution prohibits the use of acquitted conduct for sentencing purposes.

8

United States v. Robinson, 62 F.4th 318, 320 (7th Cir.) (collecting cases), cert.

denied, 144 S. Ct. 96 (2023).

Nonetheless, many judicial officials—including members of this Court—have

questioned Watts’s holding and, more generally, the use of acquitted or uncharged

conduct to increase a defendant’s range under the Sentencing Guidelines. See, e.g.,

Jones v. United States, 574 U.S. 948, 949–950 (2014) (Scalia, J., joined by Thomas

and Ginsburg, JJ., dissenting from denial of certiorari); United States v. Bell, 808

F.3d 926, 928 (D.C. Cir. 2015) (Kavanaugh, J., concurring in denial of reh’g en

banc); United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014)

(Gorsuch, J.); Watts, 519 U.S. at 170 (Kennedy, J., dissenting). See also McClinton,

143 S. Ct. at 2401 n.2 (Sotomayor, J., statement respecting denial of certiorari)

(collecting cases from federal and state courts).

Thus, perhaps unsurprisingly, this Court has come close more than once to

granting certiorari to address the legality of acquitted-conduct sentencing. Most

recently was McClinton, in which the defendant was convicted of armed robbery but

acquitted of a more serious murder charge. Id. Unfortunately for McClinton, the

sentencing judge found him guilty of murder by a preponderance of the evidence,

calculated the Sentencing Guidelines for the murder charge that the jury rejected,

and then sentenced him for a crime for which the jury refused to convict. Id.

While this Court denied certiorari in McClinton, several justices wrote

opinions with respect to the denial. Justice Sotomayor warned that “the use of

acquitted conduct to increase a defendant’s Sentencing Guidelines range and

9

sentence raises important questions that go to the fairness and perceived fairness of

the criminal justice system.” Id. at 2401. She explained how the practice is in

tension with “the jury’s historical role,” implicates fairness concerns over the

government’s ability to take a “second bite at the apple,” and diminishes public

perception of the justice system. Id. at 2401–03. Justice Kavanaugh, joined by

Justices Gorsuch and Barrett, wrote to say that they agreed with Justice Sotomayor

that the case rose “important questions”, and that the denial of certiorari should not

be seen as an endorsement of the use of acquitted conduct at sentencing. Id. at

2403. And Justice Alito wrote to say that while he saw good arguments in favor of

affirming the practice, he could not take a “firm position” on the question until a

future case allowed full briefing. Id. at 2403–06.

The justices writing in McClinton also expressed hope that the Sentencing

Commission would address this issue. Justice Sotomayor explained that the

Sentencing Commission had announced a plan to “resolve questions around

acquitted-conduct sentencing in the coming year.” Id. at 2403. She warned that if

the commission “does not act expeditiously or chooses not to act, however, this

Court may need to take up the constitutional issues presented.” Id. Other justices

echoed her desire to see how the Sentencing Commission would act. Id.

(Kavanaugh, J., Concurring). But Justice Alito clarified that “[e]ven if the

Commission eventually decides on policy grounds that such conduct should not be

considered in federal sentencing proceedings, that decision will not affect state

courts, and therefore the constitutional issue will remain.” Id. at 2403.

10

II.

The District Court proceedings in this case

The government accused Lamont Coleman of running a drug-dealing

operation out of an apartment building he owned in Gary, Indiana. (App. 1a–6a.) As

prosecutors later told the jury during opening statements, the government wanted

to show that Coleman was “the boss” of the operation, who recruited others to

distribute drugs for him. (Trial Tr. at 38–39.)

For about nine months, authorities had investigated Coleman’s apartment

building. (App. 2a.) During surveillance of the building, they never saw Coleman

himself engage in any illegal activity. (R. 283 at 18–19.) But they witnessed other

tenants, whom they referred to as “runners,” leave the building to deliver drugs to

visitors. (R. 190-1 ¶¶ 7–20.) Officers also set up their own controlled purchases of

heroin using confidential informants and undercover agents. (App. 3a–4a.) Again,

Coleman himself did not meet with the buyers; instead, an informant or agent

would call a phone number to arrange a sale, after which one of the “runners” would

leave the building to make the delivery. (App. 3a–4a.) Multiple people answered the

phone but, based on information from an informant, officers believed that Coleman

was at least sometimes the person who answered. (App. 4a; R. 190-1 ¶ 11 n. 2 & 3.)

Officers ultimately obtained a warrant to search Coleman’s personal

apartment, as well as other properties that he owned. (R. 190-1 at 19.) During the

ensuing search, officers discovered 9 grams of cocaine base, 11.5 grams of heroin,

three handguns, and $19,000 in cash. (App. 5a.)

11

A. Following trial, the jury returns a mixed verdict.

Coleman proceeded to a jury trial on six charges: (1) conspiracy to distribute

heroin; (2) distribution of heroin on January 18, 2018; (3) distribution of heroin on

February 19, 2018; (4) possession of a firearm as a felon; (5) possession with intent

to distribute heroin; and (6) possession with intent to distribute cocaine base. 1

(R. 146.) The distribution charges referred to specific dates on which the

government had arranged controlled buys, when Coleman had allegedly answered

the phone to personally take the order. (R. 146.) The possession charges were all

based on contraband found inside of Coleman’s home. (R. 146.)

At trial, the government proved the possession charges by calling a detective

who helped execute the search warrant. (Trial Tr. at 175–226.) She described the

guns, heroin, and cocaine base found in Coleman’s apartment. (Trial Tr. at Trial Tr.

at 186–89, 191 193.) But she conceded that no drug-dealing paraphernalia, such as

scales, ledgers or cutting agents, was recovered. (Trial Tr. at 207, 216.) Nor did

police find the phone used to take drug orders. (Trial Tr. at 206.)

Regarding the allegation that Coleman distributed drugs on specific dates in

January and February 2018, the government called another detective who had

organized those controlled buys. (R. 146 at 2, 7; Trial Tr. at 49–109.) The detective

described how he and a confidential informant called a phone number to request

heroin, after which they received heroin from a runner outside Coleman’s building.

1 The government voluntarily dismissed two additional drug-distribution charges which had

been in the final superseding indictment. (R. 146; R. 297; R. 299.)

12

(Trial Tr. at 64–82.) The detective opined that, on both occasions, the voice that

answered the phone was Coleman. (Trial Tr. at 67, 77.) The government attempted

to corroborate this testimony by calling another detective who also claimed to be

able to recognize Coleman’s voice. (Trial Tr. at 265–67.) And it called the informant

who had performed one of the controlled buys, and who was cooperating with the

government to receive a deal in a different case. (Trial Tr. at 240–41.) The

informant, like the two detectives, claimed that he recognized Coleman’s voice on

the phone (though he did not explain how he knew Coleman). (Trial Tr. at 235–37.)

But the government’s star witness was Coleman’s ex-girlfriend, Katrina

Owens. Owens said that she lived with Coleman during the conspiracy and, because

she was already staying with him, she claimed he recruited her to run the drug

operation. (Trial Tr. at 118, 122.) She insisted that all the proceeds of the operation

went to Coleman, and he did not pay her for her work. (Trial Tr. at 126.)

Owens testified that she would answer calls for heroin orders, and then give

drugs to one of the runners to fulfill the order. (Trial Tr. at 123.) Owens said that

she was always the one who answered the phone if she was home, but sometimes

Coleman’s uncle would answer the phone if she was not there. (Trial Tr. at 125–26.)

But when played a recording of the phone calls from the two controlled buys, Owens

claimed to recognize the voice answering the phone as Coleman. (Trial Tr. at 131–

32.)

Throughout her testimony, however, Owen’s recollection was incomplete.

Even on direct examination, she could not remember the address where she had

13

lived with Coleman, nor the phone number that she used to take drug orders. (Trial

Tr. at 119, 122–23.) And despite claiming to be the person who primarily took drug

orders, Owens claimed to not know the lingo used when placing orders. (Trial Tr. at

126.)

On cross-examination, Owens further conceded that she had already pleaded

guilty pursuant to a plea agreement that dismissed more serious drug charges, and

that she could be charged with perjury if she did not testify consistent with that

plea agreement. (Trial Tr. at 133–39.) And contrary to her earlier testimony that

Coleman took all the money from the conspiracy, Owens admitted that she had

deposited about $13,000 in a bank account six months before police raided the

apartment. (Trial Tr. at 148.)

Prior to closing arguments, the district court instructed the jury as to the

elements of each charge. (Trial Tr. at 385–401.) Regarding the definition of

“distribution,” which was relevant to many of the charges, the district court

instructed the jury that “[a] person ‘distributes’ a controlled substance if he delivers

or transfers possession of the controlled substance to someone else or causes a

person to deliver or transfer possession of the controlled substance to another

person.” (Trial Tr. at 399.)

Ultimately, the jury returned a mixed verdict. (R. 319.) The jury acquitted

Coleman of the controlled buys in January and February. (R. 319 at 1.) In doing so,

the jury rejected the testimony of the two detectives, the informant, and Coleman’s

ex-girlfriend, all of whom claimed to recognize Coleman’s voice on recordings of the

14

drug orders. (Trial Tr. at 67, 77, 131–32, 235–37, 265–67.) The jury also necessarily

rejected the government’s theory that Coleman was “the boss” of the operation

because, if the jury had agreed with the government that Coleman directed all the

activity, the jury would have found that Coleman “cause[d] a person to deliver or

transfer” drugs as and convicted him of the two specified drug sales. (Trial Tr. at

399.)

The jury further acquitted Coleman of count 6, finding either that Coleman

had not possessed the cocaine base in his apartment or had not intended to

distribute it. (R. 319 at 2.)

The jury convicted Coleman of the remaining charges, holding him

responsible for contraband found during the search of his home: a gun (count 4) and

a distribution-amount of heroin (count 5). (R. 319 at 1.) The jury further found

Coleman guilty conspiring with others to distribute heroin, but the verdict form did

not ask the jury to clarify Coleman’s role or identify the conspiracy to which he

belonged. (R. 319 at 1.)

B. The district court relies on acquitted conduct at sentencing.

At sentencing, the parties disputed how the acquitted charges should be

handled. Coleman objected to several paragraphs of his presentence investigation

report, which included as relevant conduct the specific controlled buys that the jury

rejected. (R. 341.) He also objected to the government’s characterization of him as a

“leader” of a drug-trafficking organization, and to the application of an aggravating

15

role enhancement under § 3B1.1 of the Sentencing Guidelines. (R. 341; App. 47a–

48a, 52a–54a.)

The district court ruled that acquitted conduct would be considered at

sentencing because “[a]n acquittal means that a charge has not been proved beyond

a reasonable doubt, but a sentencing court may rely on facts established by a

preponderance of the evidence.” (App. 50a) (quoting United States v. Austin, 806

F.3d 425, 433 (7th Cir. 2015)). Unlike the jury, the court “credit[ed] Ms. Owens’s

testimony as truthful and consistent with the overall evidence regarding Mr.

Coleman’s involvement in this case.” (App. 52a.) The court also, contrary to the

verdict, adopted the testimony of government witnesses who claimed to recognize

Coleman’s voice on recordings from the drug deals. (App. 49a.)

Relying on this evidence, the court found that Coleman was “the leader” of

everyone involved in the case, and it applied a four-level guideline enhancement

under § 3B1.1(a). (App. 48a, 52a–54a.) While applying this enhancement, the court

acknowledged some evidence that Coleman’s uncle had confessed to leading

conspiracy with Owens. (App. 53a.) But the court rejected this evidence in part

because it contradicted the government’s trial evidence that Coleman was in charge.

(App. 53a.)

In light of the district court’s rulings, Coleman faced a guideline range of 324

to 405 months’ imprisonment, based on an offense level of 36 and criminal-history

category of VI. (R. 377 ¶ 118; App. 77a.) If Coleman had not received the four-point

enhancement for being the leader of the conspiracy, however, he would have had a

16

final offense level of only 32. (R. 377 ¶¶ 42, 45.) This would have resulted in a final

guideline range of 210 to 262 months. U.S.S.G. Ch. 5 Pt. A.

After reviewing the factors under 18 U.S.C. § 3553(a), the court determined

that mitigating factors warranted a downward variance and imposed a sentence of

240 months (240 for each drug charge, plus 120 for the gun charge, all running

concurrently). (Sent. Tr. at 105-107.) The same sentence would have been a withinguideline sentence if Coleman had not received the leadership enhancement.

III.

The Sentencing Commission amends the Sentencing Guidelines.

After Coleman appealed his sentence, the Sentencing Commission amended

the Sentencing Guidelines to limit the use of acquitted conduct. U.S.S.G. App. C,

Amend. 826 (Nov. 1, 2024). The updated guidelines specify that relevant conduct for

calculating the guidelines “does not include conduct for which the defendant was

criminally charged and acquitted in federal court, unless such conduct also

established, in whole or in part, the instant offense of conviction. U.S.S.G.

§ 1B1.3(c).

This amendment does not apply retroactively, however, and so it did not help

Coleman or other defendants who were sentenced before November 1, 2024.

U.S.S.G. App. C, Amend. 826.

IV.

The Seventh Circuit’s decision

On appeal, Coleman raised multiple contentions, including a claim that the

district court erred by considering acquitted conduct at sentencing. (App. 36a.)

Coleman recognized, however, that his acquitted-conduct argument was foreclosed

17

by Seventh Circuit precedent, which interpreted this Court’s opinion in Watts as

permitting the use of acquitted conduct at sentencing. (App. 36a.) Coleman thus

preserved his objection to the use of acquitted conduct solely for purposes of seeking

certiorari. (App. 37a.)

The Seventh Circuit affirmed Coleman’s sentence, applying its circuit rule

that acquitted conduct may be considered at sentencing. (App. 37a–40a.) But the

court acknowledged the growing judicial concern about this practice, noting that “at

least nine Supreme Court justices, over the course of various time periods, have

expressed some level of concern with the practice.” (App. 38a.) And in McClinton,

four justices had encouraged the Sentencing Commission to resolve questions

around the use of acquitted-conduct sentencing. (App. 37a.) The commission had

since passed an amendment, the court continued, but the amendment did not apply

retroactively to defendants like Coleman. (App. 37a.) And if Coleman’s sentence

were based on an unconstitutional procedure, he would be entitled to resentencing

regardless of the amendment. (App. 38a.).

Given the growing discontent over acquitted-conduct sentencing, the Seventh

Circuit thought it “not unreasonable for Coleman to hold out hope that arguments

like those set forth by Justice Scalia in Jones might prevail, and a majority of the

Court will find that the ‘Sixth Amendment is violated when courts impose sentences

that, but for a judge-found fact, would be reversed for substantive

unreasonableness.’” (App. 39.) (quoting Jones, 574 U.S. at 948 (Scalia, J.,

dissenting)). The court was “not certain” whether the use of acquitted conduct had

18

actually prejudiced Coleman in his case. (App. 39a.) “But in any event, the issue has

been preserved, and we must await a decision in a future case as to whether a

sentence based on acquitted conduct violates the Constitution.” (App. 40a.)

19

REASONS FOR GRANTING THE PETITION

I.

This Court’s intervention is necessary to resolve a deepening

split on a cornerstone constitutional right.

The lower disagree on what it means to have a constitutional right to a jury

trial. Federal courts of appeals, like the Seventh Circuit, have interpreted this

Court’s decision in United States v. Watts, 519 U.S. 148, 149–50 (1997), as holding

that the Constitution generally allows the use of acquitted conduct to enhance a

defendant’s sentence. Under Watts, circuit courts believe that judges may not only

punish defendants for uncharged conduct—they may also punish a defendant for

conduct that a jury explicitly found that the defendant did not commit. But a

significant number of states have rejected this approach, interpreting the federal

Constitution consistent with historical practice to prohibit any consideration of

acquitted conduct at sentencing. Accordingly, lower courts are now split regarding

the scope of this fundamental constitutional right.

On one side of the split is the Supreme Court of Michigan, which held in 2019

that consideration of acquitted conduct at sentencing violates the federal

Constitution. People v. Beck, 939 N.W.2d 213 (Mich. 2019). In doing so, the court

explicitly addressed Watts, concluded that Watts addressed only a double-jeopardy

challenge, and was therefore “unhelpful in resolving whether the use of acquitted

conduct at sentencing violates due process.” Id. at 224. The Michigan court joined

other state courts that had previously held—as a matter of federal law—that

acquitted-conduct sentencing was prohibited. See State v. Cobb, 732 A.2d 425, 442

20

(N.H. 1999); State v. Marley, 364 S.E.2d 133, 139 (N.C. 1988). And Michigan was

soon followed by the Supreme Court of New Jersey, which relied on its state

constitution to hold that acquitted conduct could not be used to enhance a

defendant’s sentence. State v. Melvin, 258 A.3d 1075, 1078 (N.J. 2021). See also

State v. Satoafaiga, 150 Haw. 406, 418, 504 P.3d 324, 336 (2022) (noting similar

case law in Hawaii that prohibited practice).

On the other side of the divide is the Seventh Circuit and other federal circuit

courts, which have construed Watts as foreclosing any constitutional attack against

acquitted-conduct sentencing. (App. 36a.) This side is joined by several states that

likewise permit sentencing courts to consider acquitted conduct. See, e.g., State v.

Witmer, 10 A.3d 728, 733 (Maine 2011) (identifying California, Colorado, Florida,

Missouri, Ohio, and Wisconsin as permitting such consideration).

A conflict between state courts of last resort and federal courts of appeals on

an “important federal question” is a reason to grant certiorari, regardless of

whether a circuit split exists. See U.S. Sup. Ct. R. 10(b); Braxton v. United States,

500 U.S. 344, 347 (1991). But to be clear, even without a circuit split, members of

the federal judiciary have been far from unanimous. As the Seventh Circuit pointed

out in this case, “[a]t least nine Supreme Court justices … over the course of various

time periods, have expressed some level of concern with the practice.” (App. 38a)

(collecting cases). And as this Court is already aware, many other federal judges

have raised similar alarms. See McClinton, 143 S. Ct. at 2401 (Sotomayor, J.,

statement respecting denial of certiorari).

21

Yet, there can be no doubt that this problem will linger without this Court’s

intervention. The Seventh Circuit, for example, has repeatedly expressed the view

that Watts precludes it from sustaining a Sixth Amendment challenge to acquittedconduct sentencing. See, e.g., United States v. Price, 418 F.3d 771, 788 n.7 (7th Cir.

2005); United States v. Waltower, 643 F.3d 572, 577 (7th Cir. 2011); United States v.

McClinton, 23 F.4th 732, 735 (7th Cir. 2022). Other courts, like the Michigan

Supreme Court, think that Watts did not decide the issue and have firmly settled on

the other side. Beck, 939 N.W.2d at 224. A grant of certiorari is necessary to put the

matter to rest.

II.

The Sentencing Commission’s 2024 amendment regarding

acquitted conduct does not solve the issue.

After this Court’s denial of certiorari in McClinton, the Sentencing

Commission amended U.S.S.G. § 1B1.3 to partially ban the use of acquitted conduct

when calculating the Sentencing Guidelines. Under the updated rule, “[r]elevant

conduct does not include conduct for which the defendant was criminally charged

and acquitted in federal court, unless such conduct also established, in whole or in

part, the instant offense of conviction.” U.S.S.G. § 1B1.3(c). This change, while a

step in the right direction, does not resolve the need for this Court to intervene. For

at least five reasons, important constitutional questions remain even under the

amended guideline.

First, the amendment does not apply retroactively. For defendants like

Coleman, who were sentenced before the amendment but have pending appeals, the

22

amendment provides no relief. In Coleman’s case, and in the cases of similarly

situated defendants, acquitted-conduct sentencing presents the same issues it did

before the amendment.

Second, in future cases, the amendment will still allow courts to consider

acquitted conduct in some circumstances. By its own terms, the amendment allows

judges to use acquitted conduct to calculate the guidelines if the conduct “also

establishes, in whole or in part, the instant offense of conviction.” U.S.S.G.

§ 1B1.3(c). As explained by a commission member discussing similar language in an

earlier draft, the goal is not “that acquitted conduct be entirely banned from a

court’s considerations at sentencing,” but “just a more narrow proposal” to place

modest restrictions on its use.2 The squishiness of the updated standard is

particularly apparent in drug cases like this one, in which a jury finds the

defendant guilty of a drug conspiracy but acquits him of specific drug deals. For

example, if the updated guideline had applied to Coleman, the acquitted drug deals

would still seem provide evidence to establish “in part” his conspiracy conviction.

U.S.S.G. § 1B1.3(c). So, even under the updated guidelines, it’s not clear what

limitation (if any) would be imposed in a case like this one.

Third, lingering questions remain over whether the commission even has

authority to implement these modest restrictions. 18 U.S.C. § 3661 provides that

2 Proposed Amendments to the Federal Sentencing Guidelines Before the U.S. Sentencing

Comm’n, at 2:08:05 (Feb. 24, 2023) (remarks of Laura Mate, Vice Chair, U.S. Sentencing Comm’n),

available at http://bit.ly/3KN96OH.

23

“[n]o limitations shall be placed on the information concerning the background,

character, and conduct of [a defendant] which a court … may receive and consider

for the purpose of imposing an appropriate sentence.” As Justice Scalia explained in

his concurrence in Watts, § 3661 may prohibit the Sentencing Commission from

promulgating any amendment that would limit consideration of acquitted conduct.

Watts, 519 U.S. at 158 (Scalia, J., concurring). Unless this Court takes up the

underlying constitutional question, there is a possibility that this Court will

eventually be asked to review the validity of the current amendment instead.

Fourth, to the extent that the amendment’s text does prohibits some

consideration of acquitted conduct when calculating guidelines, the amendment is

toothless. Because the guidelines are advisory, federal judges are not bound to

follow this restriction when imposing the final sentence. See Booker, 543 U.S. at

258. Judges merely need to rely on an upward variance instead of a guidelines

adjustment to bring acquitted conduct into the mix. The guideline thus represents

little more than a semantic speedbump that does nothing to prevent a judge from

“gut[ting] the role of the jury in preserving individual liberty and preventing

oppression by the government.” United States v. Brown, 892 F.3d 385, 408 (D.C. Cir.

2018) (Millett, J., concurring).

Fifth and finally, the amended guideline does nothing to curb acquittedconduct sentencing in state courts. Many states allow the use of acquitted conduct

to enhance sentences. See, e.g., Witmer, 10 A.3d at 733 (collecting cases). An update

to the federal guidelines cannot affect the practice in state courts, and so “the

24

constitutional issue will remain.” McClinton, 143 S. Ct. at 2403 (Alito, J.,

Concurring).

At most, the updated guideline will only somewhat reduce the number of

cases in which federal judges consider acquitted conduct at sentencing. But the

issue will remain, in both federal and state courts. And state courts will continue to

be split on the constitutionality of thepractice. If this Court does not accept the

question presented now, it will only kick the can down the road for a future case.

III.

The decision below is wrong.

A. Allowing acquitted conduct to be considered at sentencing

violates the Sixth Amendment.

The Sixth Amendment’s jury guarantee represents one of the most

“fundamental reservation[s] of power in our constitutional structure.” Blakely, 542

U.S. at 305-306. This constitutional bedrock not only provides citizens a voice in

judicial proceedings but ensures their “control in the judiciary.” Id. at 306. By

empowering citizen participation, the jury trial right “safeguard[s] a person accused

of a crime against the arbitrary exercise of power by prosecutor or judge.” Batson v.

Kentucky, 476 U.S. 79, 86 (1986). The right to jury trial thus stands as a protection

“of surpassing importance,” Apprendi, 530 U.S. at 476, and “occupie[s] a central

position in our system of justice.” Batson, 476 U.S. at 86.

Acquitted-conduct sentencing diminishes the “jury’s historic role as a

bulwark between the State and the accused at the trial for an alleged offense.”

S. Union Co. v. United States, 567 U.S. 343, 350 (2012). In other contexts, jury

25

acquittals possess uncompromising “[f]inality [that] is unassailable,” “[e]ven if the

verdict is based upon an egregiously erroneous foundation.” Yeager v. United States,

557 U.S. 110, 122-123 (2009) (quotation marks omitted). As Judge Hand observed,

“[i]f [jurors] acquit their verdict is final, no one is likely to suffer of whose conduct

they do not morally disapprove; and this introduces a slack into the enforcement of

law, tempering its rigor.” United States ex rel. McCann v. Adams, 126 F.2d 774, 775776 (2d Cir. 1942) (L. Hand, J.).

But acquitted-conduct sentencing is in “tension” with the historical deference

afforded to acquittals. McClinton, 143 S. Ct. at 2402 (Sotomayor, J., statement

respecting the denial of certiorari). It breaks from historical practice by giving the

government a “second bite at the apple,” where “the Government almost always

wins by needing only to prove its (lost) case to a judge by a preponderance of the

evidence.” United States v. Canania, 532 F.3d 764, 776 (8th Cir. 2008) (Bright, J.,

concurring). This constitutional violation “diminishes the jury’s role and

dramatically undermines the protections enshrined in the Sixth Amendment.”

United States v. Mercado, 474 F.3d 654, 658 (9th Cir. 2007) (Fletcher, J.,

dissenting). Accordingly, “many judges and commentators” have recognized that

“using acquitted conduct to increase a defendant’s sentence undermines respect for

the law and the jury system,” United States v. Settles, 530 F.3d 920, 924 (D.C. Cir.

2008) (Kavanaugh, J.), eroding public confidence in jury service and discouraging

conscientious jury deliberation, see Canania, 532 F.3d at 778 & n.4 (quoting letter

from juror calling sentence based on acquitted a “tragedy” that denigrates “our

26

contribution as jurors”). See also McClinton, 143 S. Ct. at 2401 & 2401 n.2

(Sotomayor, J., statement respecting the denial of certiorari) (collecting judicial

criticism of acquitted-conduct sentencing).

Only this Court can remedy this systematic violation of the fundamental jury

trial right and restore the jury’s constitutional role as the “circuit breaker in the

State’s machinery of justice.” Blakely, 542 U.S. at 306-307.

B. Allowing acquitted conduct to be considered at sentencing

violates the Due Process Clause of the Fifth Amendment.

Acquitted-conduct sentencing also violates the Fifth Amendment right to due

process. See U.S. Const. Amend. V. The Due Process Clause works hand-in-hand

with the Sixth Amendment. The constitutional framework starts with the Sixth

Amendment’s requirement that “[a]ny fact that increases the penalty to which a

defendant is exposed constitutes an element of a crime, and must be found by a

jury, not a judge,” Jones, 574 U.S. at 948 (Scalia, J., dissenting from denial of

certiorari) (citation and quotation marks omitted). At the same time, due process

requires the government to prove “every fact necessary to constitute” a crime

“beyond a reasonable doubt.” In re Winship, 397 U.S. 358, 364 (1970). The

reasonable doubt standard “provides concrete substance for the presumption of

innocence.” Id. at 363.

Sentencing enhancements based on acquitted conduct are “unconstitutional

precisely because they derive from findings based on a preponderance of the

evidence” instead of beyond reasonable doubt. United States v. Faust, 456 F.3d

27

1342, 1351 (11th Cir. 2006) (Barkett, J., specially concurring). The beyondreasonable-doubt standard is the procedural cornerstone of due process; the proof

the Constitution “demand[s] from the government as an indispensable precondition

to depriving an individual of liberty for the alleged conduct.” Bell, 808 F.3d at 930

(Millett, J., concurring in denial of reh’g en banc). When the government gets to

relitigate acquitted conduct at sentencing under a preponderance standard, it

sidesteps the proper evidentiary standard and deprives defendants of the full

protections that the Constitution attaches to the presumption of innocence. See

Beck, 939 N.W.2d at 225 (“conduct that is protected by the presumption of innocence

may not be evaluated using the preponderance-of-the-evidence standard without

violating due process”); Marley, 364 S.E.2d at 139; State v. Cote, 530 A.2d 775, 785

(N.H. 1987).

Acquitted-conduct sentencing also undermines “the notice requirement that

is at the heart of any criminal proceeding.” Canania, 532 F.3d at 777 (Bright, J.,

concurring). When courts consider acquitted conduct during sentencing, “a

defendant can never reasonably know what his possible punishment will be”

because “[i]t is not unreasonable for a defendant to expect that conduct underlying a

charge of which he’s been acquitted to play no determinative role in his sentencing.”

Id. This uncertainty creates perverse pressure against defendants exercising their

trial rights. “Even defendants with strong cases may understandably choose not to

exercise their right to a jury trial when they learn that even if they are acquitted,

28

the State can get another shot at sentencing.” McClinton, 143 S. Ct. at 2402

(Sotomayor, J., statement respecting the denial of certiorari).

C. To the extent that Watts controls this case, this Court should

overrule Watts.

The Seventh Circuit affirmed Coleman’s sentence based on Watts and circuit

law construing Watts to hold that a sentencing judge can consider acquitted conduct

in calculating a sentence. (App. 36a.) But the Watts Court did not consider the issue

raised here. The Watts case “presented a very narrow question regarding the

interaction of the Guidelines with the Double Jeopardy Clause, and did not even

have the benefit of full briefing or oral argument.” Booker, 543 U.S. at 240 n.4.

Lower courts’ reliance on Watts to resolve different constitutional arguments is

therefore “misplaced.” Mercado, 474 F.3d at 661 (Fletcher, J., dissenting); accord

White, 551 F.3d at 392.

That being said, the petitioner recognizes that many jurists have interpreted

Watts to foreclose any argument that the Constitution prohibits the consideration of

acquitted conduct at sentencing. Indeed, in the Seventh Circuit, circuit law required

Coleman to concede that his claim was foreclosed by Watts. (App. 36a.) Accordingly,

members of this Court may conclude that ruling for the petitioner would require

overruling Watts. See McClinton, 143 S. Ct. at 2405 (Alito, J., Concurring). To the

extent that Watts forecloses Coleman’s Fifth and Sixth Amendment arguments, this

Court should abandon that decision as an outlier that is out out of step with this

Court’s more recent Sixth Amendment jurisprudence.

29

In the quarter century since Watts, this Court has issued numerous decisions

emphasizing the essential importance of jury factfinding in determining criminal

sentences. See, e.g., Apprendi, 530 U.S. 466 (jury must find all facts affecting

statutory maximum); Ring v. Arizona, 536 U.S. 584 (2002) (jury must find

aggravating factors permitting death penalty); Blakely, 542 U.S. 296 (jury must find

all facts essential to sentence); Booker, 543 U.S. 220 (Sentencing Guidelines are

subject to Sixth Amendment); Cunningham v. California, 549 U.S. 270 (2007) (jury

must find facts exposing defendant to longer sentence); S. Union Co., 567 U.S. 343

(jury must find facts permitting imposition of criminal fine); Alleyne, 570 U.S. 99

(jury must find facts increasing mandatory minimum); Hurst v. Florida, 577 U.S. 92

(2016) (jury must make critical findings needed for imposition of death sentence);

Haymond, 139 S. Ct. 2369 (2019) (judge cannot make findings to increase sentence

during supervised release term).

From those cases, “[i]t unavoidably follows that any fact necessary to prevent

a sentence from being substantively unreasonable—thereby exposing the defendant

to the longer sentence—is an element [of the crime] that must be either admitted by

the defendant or found by the jury. It may not be found by a judge.” Jones, 574 U.S.

at 949 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of

certiorari).

Watts stands out as a strange contrast to these other cases. Watts was also a

rushed per curiam opinion, rendered without full briefing or oral argument. Watts,

519 U.S. at 171 (Kennedy, J., dissenting). And it was issued three years before

30

Apprendi brought us into the modern era of Sixth Amendment jurisprudence.

Apprendi, 530 U.S. at 469-70. In short, Watts is an outdated relic, resting on

questionable foundations, which has outlived its purpose.

IV.

This case is a good vehicle to resolve the constitutionality of

acquitted conduct.

The parties expressly litigated the issue of acquitted conduct in Lamont

Coleman’s case. Coleman objected to the use of acquitted conduct in the district

court. (R. 341; App. 50a.) The district not only overruled the objection, but also

explicitly found credible testimony that the jury rejected. (App. 49a, 52a.) And

despite binding circuit precedent that doomed his objection, Coleman preserved his

claims on appeal for further review. (App. 36a.) “[T]he issue has been preserved,

and we must await a decision in a future case as to whether a sentence based on

acquitted conduct violates the Constitution.” (App. 40a.)

This Court should not be dissuaded by the Seventh Circuit’s comments that it

was “not certain” whether a ban on acquitted conduct would benefit Coleman. True,

Coleman’s base offense level was not based on drug quantity, and so the quantity of

drugs from the acquitted deals did not increase the guideline range. (R. 377 ¶ 38.)

But the evidence necessary for the court to find Coleman a “leader” and apply an

aggravating-role enhancement under § 3B1.1(a) was the very same evidence that

the jury rejected when it acquitted Coleman of the drug transactions performed by

his alleged subordinates.

31

Parsing the jury’s mixed verdict shows that the jury convicted Coleman only

for conduct that could traced specifically to evidence found in Coleman’s home.

During the raid of Coleman’s apartment, officers caught him red-handed in

possession of firearms, a distribution-quantity of heroin, and a small amount of

cocaine base. (Trial Tr. at Trial Tr. at 186–89, 191 193.) The cocaine base was too

little to convict for possession with intent to distribute—especially when police

failed to find any other evidence of dealing in the apartment. (Trial Tr. at 207, 216;

R. 319 at 2.) But the jury had no trouble convicting Coleman of possessing a firearm

or possessing heroin with an intent to distribute. (R. 319 at 1.) Nor did the jury

hesitate to find that this material was connected to the larger conspiracy involving

Coleman’s live-in girlfriend and other tenants, and therefore convict Coleman of

conspiring with others to distribute heroin. (R. 319 at 1.)

What the jury refused to do, however, was hold Coleman responsible for the

criminal activity of others. Jurors acquitted Coleman of two drug sales that followed

a similar set of allegations: a “buyer” working for the government called a phone to

order heroin, Coleman allegedly answered the phone and took the order, and

Coleman then allegedly directed another person to go out and deliver the heroin.

(Trial Tr. at 64–82.) But even after the government presented Coleman’s exgirlfriend to testify that all the drug dealers were working at the command of

Coleman, the jury acquitted Coleman of these drug sales. (Trial Tr. at 118, 122, 126;

R. 319 at 1.)

32

If the jury believed the government’s witnesses and agreed with the

government that Coleman was the puppet master pulling everyone else’s strings,

then it would have also convicted Coleman of the drug deals performed by his

supposed subordinates. The January and February controlled buys were recorded,

and the parties did not dispute at trial that the drug deals occurred. And the

district court instructed the jury to find Coleman responsible for distribution if

Coleman “cause[d] a person to deliver or transfer possession of the controlled

substance to another person.” (Trial Tr. at 399.) That the jury found Coleman not

responsible for distributing heroin on those dates shows that the jury necessarily

rejected any allegation that Coleman was the leader of a conspiracy, or otherwise

caused another person to deliver drugs.

Even though the district court ultimately sentenced Coleman to 240 months,

below the calculated range, that “downward variance” was measured against an

artificially inflated guideline range of 324 to 405 months. (R. 377 ¶ 118.) If not for

the aggravating role enhancement under § 3B1.1—based on evidence that the jury

rejected—Coleman’s guideline range would have been only 210 to 262 months.

(R. 377 ¶¶ 42, 45.) See U.S.S.G. Ch. 5 Pt. A (guideline range for offense level of 32

and criminal-history category of VI). Coleman’s sentence is in the top half of that

range, rather than a downward variance reflecting the “several mitigating factors”

presented at sentencing. (App. 88a.)

Separate from the guideline calculations, the district court also relied on

acquitted conduct when exercising its discretion under 18 U.S.C. § 3553. When

33

Coleman objected to the inclusion of conduct related to acquitted counts in his

presentence investigation report, the court explicitly ruled that acquitted conduct

would be considered in sentencing. (App. 50a). And when it comes to the

consideration of acquitted conduct as a general matter outside of the guideline

calculations, only this Court’s intervention will be sufficient to tamp down on the

practice. The advisory nature of the guidelines means that no amendment from the

Sentencing Commission can change how courts exercise their discretion under

§ 3553 and § 3661. Congress has seemingly permitted the use of acquitted conduct

by statute, see Watts, 519 U.S. at 158 (Scalia, J., concurring), and only this Court

can clarify that Congress’s decree (if interpreted that way) violates the Constitution.

Coleman’s case also demonstrates this type of acquitted-conduct sentencing.

CONCLUSION

For the foregoing reasons, this Court should grant the petition for a writ of

certiorari.

34

Respectfully submitted,

Thomas W. Patton

Federal Public Defender

s/ Michael Will Roy

MICHAEL WILL ROY

Assistant Federal Public Defender

Counsel of Record

Office of the Federal Public Defender

300 W. Main Street

Urbana, Illinois 61801

Phone: (217) 373-0666

Email: michael_roy@fd.org

Counsel for Petitioner

August 13, 2025

35

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.

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