Petition for Writ of Certiorari — Lamont Coleman, Petitioner v. United States
Supreme Court briefAug 13, 2025
Ask Donna
What actually matters in this document.
Text
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.
3
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
7
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.