Amicus Curiae Brief — Lamont Coleman, Petitioner v. United States

Case No. 25-5405

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

Court of Appeals for the Seventh Circuit

_________

BRIEF OF PROFESSOR DOUGLAS BERMAN AS

AMICUS CURIAE IN SUPPORT OF PETITIONER

_________

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212 872 9800

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

September 18, 2025

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street

Suite 1825

Denver, CO 80202

303 830 1776

keith.bradley@squirepb.com

Counsel for Amicus

Professor Douglas

Berman

i

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE .......................... 1

SUMMARY OF ARGUMENT................................... 1

ARGUMENT ............................................................. 5

I.

As Justices and Judges Recognize, the

Historic Rights and Protections of Jury

Trials are Gravely Undermined when

Sentences are Enhanced by JuryRejected Facts. ................................................ 7

II.

This Case Is Yet Another Example of

Constitutionally Problematic AcquittedConduct Sentencing...................................... 14

III.

By Empowering Prosecutors and

Impacting All Indictments and Pleas,

Acquitted-Conduct Sentencing

Continues to Distort the Operation of

the Entire Federal Justice System. ............. 17

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

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013) ........................................ 4, 7, 15

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................. 1, 4, 7, 13

Batson v. Kentucky,

476 U.S. 79 (1986) ..................................................7

Blakely v. Washington,

542 U.S. 296 (2004) ...... 4, 5, 6, 7, 14, 17, 18, 20, 21

Booker v. United States,

543 U.S. 220 (2005) ................................ 5, 7, 12, 23

Duncan v. Louisiana,

391 U.S. 145 (1968) ..........................................7, 17

Jones v. United States,

526 U.S. 227 (1999) ..........................................7, 10

Jones v. United States,

574 U.S. 948 (2014) ........................................10, 23

McClinton v. United States,

600 U.S. ___, 143 S. Ct. 2400 (2023) .................2, 3

Missouri v. Frye,

566 U.S. 134 (2012) ..............................................19

iii

Missouri v. Hunter,

459 U.S. 359 (1983) ..............................................20

Nelson v. Colorado,

581 U.S. 128 (2017) ................................................8

People v. Beck,

939 N.W.2d 213 (Mich. 2019) ..............................13

Ramos v. Louisiana,

590 U.S. 83 (2020) ..................................................7

Singer v. United States,

380 U.S. 24 (1965) ..................................................7

Southern Union Co. v. United States,

567 U.S. 343 (2012) ................................................8

State v. Cote,

530 A.2d 775 (N.H. 1987) ....................................13

State v. Marley,

364 S.E.2d 133 (N.C. 1988) .................................14

State v. Melvin,

258 A.3d 1075 (N.J. 2021) ...................................14

United States v. Bell,

808 F.3d 926 (D.C. Cir. 2015) .................. 10, 12, 19

United States v. Brooks,

No. CR JKB-18-0408, 2024 WL

4803406 (D. Md. Nov. 15, 2024) ..........................16

United States v. Brown,

892 F.3d 385 (D.C. Cir. 2018) ..............................10

iv

United States v. Bullock,

35 F.4th 666 (8th Cir. 2022) ................................11

United States v. Canania,

532 F.3d 764 (8th Cir. 2008)................ 9, 11, 22, 23

United States v. Coleman,

138 F.4th 489 (7th Cir. 2025) .......................... 3, 10

United States v. Coleman,

370 F. Supp. 2d 661 (S.D. Ohio 2005) .............9, 12

United States v. Faust,

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

United States v. Gaudin,

515 U.S. 506 (1995) ............................................1, 7

United States v. Haymond,

588 U.S. 634 (2019) ................................................4

United States v. Huerta-Rodriguez,

355 F. Supp. 2d 1019 (D. Neb. 2005) ..................13

United States v. Ibanga,

454 F. Supp. 2d 532 (E.D. Va. 2006) ............... 9, 13

United States v. Jacques,

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

2466994 (E.D.N.Y. Aug. 27, 2025) ......................16

United States v. Johnson,

754 F. Supp. 3d 305 (E.D.N.Y. 2024) ..................13

United States v. Jones,

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

v

United States v. Martinez,

769 F. App’x 12 (2d Cir. 2019) .............................11

United States v. McClinton,

23 F.4th 732 (7th Cir. 2022) ............................2, 12

United States v. Mercado,

474 F.3d 654 (9th Cir. 2007)............................9, 12

United States v. Papakee,

573 F.3d 569 (8th Cir. 2009)..................................9

United States v. Pimental,

367 F. Supp. 2d 143 (D. Mass. 2005) ..............9, 13

United States v. Safavian,

461 F. Supp. 2d 76 (D.D.C. 2006) ..........................9

United States v. Settles,

530 F.3d 920 (D.C. Cir. 2008) ................................9

United States v. Sharkey,

131 F.4th 621 (8th Cir. 2025) ..............................15

United States v. Spivak,

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

1167185 (N.D. Ohio Apr. 22, 2025) .....................16

United States v. Touray,

____ F.4th ____, No. 23-13121, 2025

WL 2398696 (11th Cir. Aug. 19,

2025) .....................................................................15

United States v. Waltower,

643 F.3d 572 (7th Cir. 2011)................................11

vi

United States v. Watts,

519 U.S. 148 (1997) ................................................9

Williams v. Florida,

399 U.S. 78 (1970) ..................................................7

Statutes

18 U.S.C. § 3553(a)................................................3, 16

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

2024) .......................................................................2

U.S.S.G. § 1B1.3(c) ......................................................2

Other Authorities

1 J. Bishop, Criminal Procedure 50 (2d

ed. 1872) ...............................................................15

Barry L. Johnson, If at First You Don’t

Succeed—Abolishing the Use of

Acquitted Conduct in Guidelines

Sentencing, 75 N.C. L. Rev. 153

(1996) ....................................................................22

Clark Neily, A Distant Mirror:

American-Style Plea Bargaining

Through the Eyes of a Foreign

Tribunal, 27 Geo. Mason L. Rev. 719

(2020) ....................................................................19

Erik Lillquist, The Puzzling Return of

Jury Sentencing: Misgivings About

Apprendi, 82 N.C. L. Rev. 621 (2004) .................21

vii

Human Rights Watch, An Offer You

Can't Refuse: How US Federal

Prosecutors Force Drug Defendants

to Plead Guilty, Human Rights

Watch, 78-90 (Dec. 5, 2013),

https://www.hrw.org/report/2013/12/

05/offer-you-cant-refuse/how-usfederal-prosecutors-force-drugdefendants-plead..................................................20

Jim McElhatton, “Juror No. 6” stirs

debate on sentencing, The

Washington Times (May 3, 2009)

https://www.washingtontimes.com/n

ews/2009/may/3/juror-no-6questions-rules-of-sentencing/.............................23

Jim McElhatton, A $600 drug deal, 40

years in prison, The Washington

Times (June 29, 2008) .........................................23

INTEREST OF AMICUS CURIAE1

Amicus is a legal scholar who teaches, conducts

research, and practices in the fields of criminal law

and sentencing in the United States.1 Professor

Berman is the co-author of the casebook Sentencing

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

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

Sentencing Reporter for more than a quarter century.

Professor Berman is also the sole creator and author

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

which this Court and numerous lower courts have

cited. He has a professional interest in ensuring that

federal sentencing law is interpreted and applied in a

manner that coherently advances its purposes and is

consistent with longstanding constitutional principles

and with contemporary function in the criminal law.

SUMMARY OF ARGUMENT

Lamont Coleman, upon being accused by federal

authorities of various crimes, invoked “constitutional

protections of surpassing importance,” Apprendi v.

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

trial rights “designed ‘to guard against a spirit of

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

United States v. Gaudin, 515 U.S. 506, 510–11 (1995)

(citation omitted). Specifically, Coleman opted to

proceed to trial after he was indicted on various drug

charges and a firearms charge. At trial, a unanimous

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

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

its counsel, made a monetary contribution to the preparation or

submission of this brief. The parties have received timely notice

of this filing.

2

jury convicted Coleman of some charges and acquitted

him of others.

But at sentencing, the district judge, relying on

existing precedents, credited and expressly relied on

trial evidence rejected by the jury. See Petition at

12–17, 33. This case thus raises the recurring

constitutional issues that several members of this

Court flagged just two years ago. See McClinton v.

United States, 600 U.S. ___, 143 S. Ct. 2400 (2023).

This Court denied certiorari in McClinton, with

Members of this Court suggesting that it was

“appropriate” to await then on-going work by the

Sentencing Commission concerning the use of

“acquitted conduct” in federal sentencing. Id. at 2403

(Kavanaugh J., joined by Justices Gorsuch and

Barrett, statement respecting the denial of

certiorari); see also id. at 2401 (Sotomayor, J.,

statement respecting the denial of certiorari).

In 2024, the Sentencing Commission amended the

Guidelines’ relevant conduct rules to formally exclude

“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. App. C,

Amend. 826 (Nov. 1, 2024); U.S.S.G. § 1B1.3(c). As

written, the Guidelines still leave unclear exactly

whether, when, and how jury acquittals will actually

limit judicial enhancement of Guideline sentencing

ranges, and it is quite clear that judges are still

permitted (and perhaps statutorily obligated) to rely

upon acquitted conduct when exercising their broader

3

statutory sentencing discretion under 18 U.S.C. §

3553(a). (Coleman did not even benefit from amended

relevant conduct rules because his sentence was

issued and pending appeal when the amendment,

which is not retroactive, became effective. See United

States v. Coleman, 138 F.4th 489, 512 (7th Cir. 2025)

(“The Guideline revision, however, does not have

retroactive effect.”).)

Of course, beyond the limited reach and uncertain

impact of the relevant conduct amendment to the

Guidelines, the U.S. Sentencing Commission’s work

does not and cannot speak to the sentencing of

criminal defendants in state courts. Only this Court

can provide constitutional guidance regarding the

role of acquitted-conduct sentencing for all criminal

justice systems. See McClinton, 143 S. Ct. at 2404

(Alito, J., concurring in the denial of certiorari)

(noting that any action by the Commission “will not

affect state courts, and therefore the constitutional

issue will remain”).

Understandably, many state courts and lower

federal courts continue to read this Court’s past

jurisprudence to call for treating acquitted-conduct

judicial

fact-finding

at

sentencing

as

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

about the importance of Fifth and Sixth Amendment

trial rights as a limit on government power are to

have real purchase—and if the text, history and

traditions embraced by the Founders of our Nation

are to be given enduring meaning—the Court should

4

grant review in this case to articulate sound limits on

judicial authority to increase a sentence based on

jury-rejected facts.

This Court has repeatedly extolled and stressed

the importance of a defendant’s right to have a jury

decide facts essential to punishment: “Only a jury,

acting on proof beyond a reasonable doubt, may take

a person’s liberty. That promise stands as one of the

Constitution’s most vital protections against

arbitrary government.” United States v. Haymond,

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

v. United States, 570 U.S. 99, 114 (2013); Blakely v.

Washington, 542 U.S. 296, 306 (2004); Apprendi, 530

U.S. at 477. But when a judge directly and expressly

relies on jury-rejected facts to increase a sentence, the

jury trial “promise” becomes empty and this “vital”

protection against the government becomes illusory.

This case presents a fitting and timely vehicle for

this Court to finally grant certiorari, receive full

briefing, and hear these and all other arguments

regarding this important and persistent question.

The original meaning and proper application of the

jury trial right in the Sixth Amendment and the due

process right in the Fifth and Fourteenth

Amendments with respect to judicial punishment

increases based on acquitted conduct should be

directly addressed.

For these reasons, the Court should grant

Coleman’s petition for a writ of certiorari.

5

ARGUMENT

After a full jury trial, the people exercised

suffrage in this case by unanimously acquitting

Lamont Coleman of significant charges that the

government brought against him. But, disregarding

the citizenry constitutional role “as [a] circuitbreaker

in the State’s machinery of justice,” Blakely, 542 U.S.

at 306, the district judge at sentencing decided that

Guidelines calculations could and should be based on

judicial factual findings that disregarded the jury’s

verdict. Such disregard of the jury’s findings renders

the Sixth Amendment a mere procedural formality,

even though this Court has repeatedly emphasized

that the reach and application of jury trial rights

should not be driven by “Sixth Amendment

formalism, but by the need to preserve Sixth

Amendment substance.” Booker v. United States, 543

U.S. 220, 237 (2005).

Despite the constitutional issues resulting from

sentencing enhancements based on alleged offense

“facts” which were expressly rejected by the jury

verdict, the district judge embraced the jury-rejected

allegations that Coleman was “the leader” of a drugtrafficking organization and applied a four-level

guideline enhancement under § 3B1.1(a). In so doing,

the sentencing judge calculated a Guidelines range,

and thereafter imposed a final sentence, that relied

on facts and witness testimony that the jury

discredited.

And though the judge imposed a

sentence below the calculated Guidelines range, the

judge’s sentencing decision-making at every stage

6

was in clear contravention of jury determinations as

reflected in the verdict.

The people’s role in

determining the truth of the prosecutors’ accusations

was ignored; Coleman’s jury acquittal on major

charges was effectively nullified by the judge through

his sentencing fact-finding and decision-making.

When acquittals carry no real sentencing

consequences, prosecutors have nothing to lose (and

much to gain) from bringing multiple charges, even

when they might fully expect the jury to ultimately

reject many such charges. The trial functions then

merely as a first bite at the apple, offering prosecutors

a chance to present their case to the jury and then,

even if unsuccessful, present it again to the

sentencing judge so long as the jury finds the

defendant guilty of at least one charge.

This case thus concerns the serious and

dangerous erosion of Fifth and Sixth Amendment

rights resulting from a judicial sentencing relying on

facts rejected by the jury. This Court has stressed the

need “to give intelligible content to the right of [a] jury

trial,” Blakely, 542 U.S. at 305, and that demands

differentiating between cases in which sentencing is

based on facts never contested by a jury and cases

such as this one in which Guidelines ranges and a

final sentence reflect facts expressly rejected by a

jury. When a federal judge significantly enhances a

prison sentence based expressly on allegations

rejected by a “not guilty” jury verdict, the jury trial

right is functionally nullified in violation of the Fifth

and Sixth Amendments.

7

I.

As Justices and Judges Recognize, the

Historic Rights and Protections of Jury

Trials are Gravely Undermined when

Sentences are Enhanced by JuryRejected Facts.

This Court has repeatedly emphasized that the

jury-trial right is “clearly intended to protect the

accused from oppression by the Government.” Singer

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

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

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

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

the arbitrary exercise of power by prosecutor or

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

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

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

oppression and tyranny on the part of rulers,” and

acts “as the great bulwark of our civil and political

liberties” (citation omitted)); Blakely, 542 U.S. at 305–

06; Booker, 543 U.S. at 237–39; Alleyne, 570 U.S. at

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

intermediary between the State and criminal

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

right as an “inestimable safeguard” protecting a

defendant “against the corrupt or overzealous

prosecutor and against the compliant, biased, or

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

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

“fundamental to the American scheme of justice.”

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

Duncan, 391 U.S. at 148–50).

8

Yet oft-repeated proclamations about the

importance of “the jury’s historic role as a bulwark

between the State and the accused,” Southern Union

Co. v. United States, 567 U.S. 343, 350 (2012), ring

disturbingly hollow for Coleman and other

defendants when, after being vindicated by jury

acquittals, prosecutors are still permitted to seek, and

judges are still be permitted to calculate, enhanced

Guidelines ranges and longer prison sentences based

on the very same allegations the jury rejected. Longer

sentences in these cases make acquittals mere

formalities; they function as acquittals in name only

with no meaningful consequence or limit on the

state’s effort to punish based on the very allegations

the jury unanimously disavowed. Coleman and other

defendants subject to sentences enhanced by

acquitted conduct are left to wonder just what kind of

“bulwark” or “safeguard” the Fifth and Sixth

Amendments truly provide when prosecutors and

judges can wholly disregard jury findings at

sentencing. Indeed, Coleman and similar defendants

must find jarring that this Court in Nelson v.

Colorado ruled that after a jury acquittal “Colorado

may not presume a person . . . nonetheless guilty

enough for monetary exactions,” 581 U.S. 128, 136

(2017) (emphasis in original), and yet federal judges,

after jury acquittals, may still find defendants “guilty

enough” for an increase in liberty deprivation in the

form of prison time. Cf. id. at 154 n.9 (explaining that

the “presumption of innocence unquestionably”

constitutes a “principle of justice so rooted in the

traditions and conscience of our people as to be ranked

9

as fundamental” (quoting Medina v. California, 505

U.S. 437, 445) (1992)).

Recognizing the fundamental tension between

sentence enhancements based on acquitted conduct

and giving real meaning to jury trial rights, Justices

of this Court and lower court judges have described

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

“Kafka-esque,”

“uniquely

malevolent,”

and

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

169–70 (1997) (Stevens, J., dissenting); United States

v. Ibanga, 454 F. Supp. 2d 532, 536 (E.D. Va. 2006)

(Kelley, J.); United States v. Canania, 532 F.3d 764,

776–77 (8th Cir. 2008) (Bright, J., concurring); United

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

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

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

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

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

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

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

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

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

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

Notably,

Justice

Kavanaugh

repeatedly

recognized problems with acquitted conduct

enhancements while serving as a Circuit Judge. In

2008, then-Judge Kavanaugh rightly described

reliance on acquitted conduct as “unfair,” United

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

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

10

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

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

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

Kavanaugh suggested the Supreme Court might see

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

reasons to be concerned about the use of acquitted

conduct at sentencing, both as a matter of appearance

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

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

dissenting in part).

The late-Justice Scalia, joined by Justices

Thomas and Ginsburg, dissented from a denial of

certiorari in a case raising this issue in Jones v.

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

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

that significantly increased a drug defendant’s

sentence to be especially concerning when based on

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

particularly appealing case” for review “because not

only did no jury convict these defendants of the

offense the sentencing judge thought them guilty of,

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

(emphasis in original).

Indeed, the court in the decision below noted that

“at least nine Supreme Court justices . . . over the

course of various time periods, have expressed some

level of concern with the practice” and that it would

“await a decision” as to the constitutionality of

considering acquitted conduct at sentencing. United

States v. Coleman, 138 F.4th 489, 512 (7th Cir. 2025).

11

Despite the fact that many Justices of this Court

have repeatedly questioned the constitutionality of

sentences based on acquitted conduct, courts of

appeals and state courts still rely on this Court’s preApprendi precedents to justify the consideration of

acquitted conduct in imposing sentences. See, e.g.,

United States v. Bullock, 35 F.4th 666, 671 (8th Cir.

2022) (“the district court’s reliance on acquitted

conduct to depart upward did not violate Bullock’s

Fifth and Sixth Amendment rights”); United States v.

Waltower, 643 F.3d 572, 577 (7th Cir. 2011) (“Because

the Supreme Court has rejected due process and

double jeopardy challenges to the use of acquitted

conduct at sentencing, its use on an advisory basis

cannot by itself furnish Sixth Amendment

ammunition for excluding acquitted conduct at

sentencing.”).

Yet, even as lower courts read this Court’s

precedents to allow use of acquitted conduct to

enhance sentences, judges continue to criticize the

practice as unconstitutional and unjust. See, e.g.,

United States v. Martinez, 769 F. App’x 12, 17 (2d Cir.

2019) (Pooler, J., concurring) (stating that the district

court’s practice of using acquitted conduct to enhance

a defendant’s sentence is “fundamentally unfair” and

runs afoul of the Sixth Amendment); Canania, 532

F.3d at 776 (Bright, J., concurring) (“[T]he

consideration of ‘acquitted conduct’ to enhance a

defendant’s sentence is unconstitutional.”); Faust,

456 F.3d at 1349 (Barkett, J., specially concurring) (“I

strongly believe . . . that sentence enhancements

12

based on acquitted conduct are unconstitutional

under the Sixth Amendment, as well as the Due

Process Clause of the Fifth Amendment.”); Mercado,

474 F.3d at 658 (Fletcher, J., dissenting) (“Reliance on

acquitted conduct in sentencing diminishes the jury’s

role and dramatically undermines the protections

enshrined in the Sixth Amendment. Both Booker and

the clear import of the Sixth Amendment prohibit

such a result.”). As aptly noted by Judge Millett of

the D.C. Circuit, “when the central justification the

government offers for such an extraordinary increase

in the length of imprisonment is the very conduct for

which the jury acquitted the defendant, that libertyprotecting bulwark becomes little more than a speed

bump at sentencing.” Bell, 808 F.3d at 929 (Millett,

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

concurring) (“I share Judge Millett’s overarching

concern about the use of acquitted conduct at

sentencing”); United States v. McClinton, 23 F.4th

732, 735 (7th Cir. 2022) (noting that challenges to

acquitted conduct enhancements “ha[ve] garnered

increasing support among many circuit court judges

and Supreme Court Justices, who in dissenting and

concurring opinions, have questioned the fairness and

constitutionality of allowing courts to factor acquitted

conduct into sentencing calculations”).

Likewise, district court judges have expressed the

view that sentencing based upon conduct for which

the defendant was acquitted is unconstitutional. See,

e.g., Coleman, 370 F. Supp. 2d at 671 (Marbley, J.)

(“[T]he jury’s central role in the criminal justice

13

system is better served by respecting the jury’s

findings with regard to authorized and unauthorized

conduct.” (emphasis in original)); Pimental, 367 F.

Supp. 2d at 152 (Gertner, J.) (“To consider acquitted

conduct trivializes ‘legal guilt’ or ‘legal innocence’—

which is what a jury decides—in a way that is

inconsistent with the tenor of the recent case law.”);

Ibanga, 454 F. Supp. 2d at 539 (Kelley, J.)

(“Punishing defendant Ibanga for his acquitted

conduct would have contravened the statutory goal of

furthering respect for the law and would have

resulted in unjust punishment for the offense for

which he was convicted . . . .”); United States v.

Huerta-Rodriguez, 355 F. Supp. 2d 1019, 1028 (D.

Neb. 2005) (Bataillon, J.) (“[T]he court finds that it

can never be ‘reasonable’ to base any significant

increase in a defendant’s sentence on facts that have

not been proved beyond a reasonable doubt.”); see also

United States v. Johnson, 754 F. Supp. 3d 305, 312

(E.D.N.Y. 2024) (Block, J.) (“The practice of

sentencing defendants based on acquitted conduct is

now firmly disfavored.”).

Notably, a number of state supreme courts have

recognized, both recently and before this Court’s

Apprendi jurisprudence, the serious constitutional

problems with enhancing a sentence based on

acquitted conduct. See, e.g., People v. Beck, 939

N.W.2d 213, 226 (Mich. 2019); State v. Cote, 530 A.2d

775, 785 (N.H. 1987) (“We think it disingenuous at

best to uphold the presumption of innocence until

proven guilty . . . while at the same time punishing a

14

defendant based upon charges in which that

presumption has not been overcome.”); State v.

Marley, 364 S.E.2d 133, 139 (N.C. 1988) (concluding

that “due process and fundamental fairness precluded

the trial court from aggravating defendant’s”

sentence with acquitted conduct); State v. Melvin, 258

A.3d 1075, 1078 (N.J. 2021) (relying on New Jersey

Constitution to hold “that fundamental fairness

prohibits courts from subjecting a defendant to

enhanced sentencing for conduct as to which a jury

found that defendant not guilty”). These rulings,

which are often grounded in both the Fifth and

Fourteenth Amendments’ guarantees of due process

and the Sixth Amendment’s jury trial right, recognize

and confront the fundamental problems with allowing

prosecutors and judges to nullify jury findings at

sentencing and render jury trials “a mere preliminary

to a judicial inquisition into the facts of the crime the

State actually seeks to punish.” Blakely, 542 U.S. at

307 (emphasis in original).

II.

This Case Is Yet Another Example of

Constitutionally Problematic AcquittedConduct Sentencing.

Coleman’s case illustrates the real consequences

of judicial fact-finding regarding jury-rejected facts

continuing to drive sentencing outcomes. The fourlevel “leader” enhancement, which was based in part

on jury-rejected determinations, increased Coleman’s

Guidelines range from 210 to 262 months to 324 to

405 months, adding roughly a decade of

imprisonment to the Guidelines’ starting point and

15

sentencing benchmark. See Petition at 12–17, 33.

The district court found that mitigating factors called

for a below-Guideline sentence of 240 months, but the

reduction came from the inflated Guidelines

benchmark based on jury-rejected facts.

The 240-month sentence was not functionally a

below-Guidelines sentence because it was at the highend of the proper Guidelines range absent

consideration of constitutionally suspect acquitted

conduct. Critically, the jury-rejected/judicially-found

facts used here to apply a four-level enhancement

under the Guidelines were fundamentally “essential

to the punishment” imposed. 1 J. Bishop, Criminal

Procedure 50 (2d ed. 1872); cf. Alleyne, 570 U.S. at

109–10 (Thomas, J., plurality op.) (describing “a wellestablished practice of . . . submitting to the jury,

every fact that was a basis for imposing or increasing

punishment”).

Though the U.S. Sentencing Commission has now

amended the Guidelines to exclude acquitted conduct

in some circumstances from being considered in

Guidelines calculations, there are still many

defendants like Coleman serving longer prison

sentences based on constitutionally-suspect acquitted

conduct enhancements. See, e.g., United States v.

Touray, ___ F.4th ____, No. 23-13121, 2025 WL

2398696, at *10 (11th Cir. Aug. 19, 2025) (upholding

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

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

sentencing court was not required “to apply proposed

16

amendments to the Sentencing Guidelines that would

prohibit consideration of acquitted conduct”).

Moreover, judges have noted the various situations in

which the Guidelines amendment does not preclude a

sentence lengthened based on acquitted conduct,

whether in consideration of the statutory § 3553(a)

factors or in consideration of conduct that underlies

both acquitted and convicted offenses. See, e.g.,

United States v. Jacques, No. 08-CR-00577 (NCM),

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

(where defendant was acquitted of importing and

possessing five kilograms or more of cocaine but

convicted only of 500 grams or more, sentencing court

held it could still sentence based on large quantity

because “the same conduct underlies both a convicted

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

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

Apr. 22, 2025) (holding that, notwithstanding

Guidelines amendment, “when calculating the

guideline range, a court may consider any evidence of

the total loss within the scope of the conspiracy, even

if a jury acquitted a defendant of some conduct

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

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

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

prohibits the consideration of acquitted conduct in

determining the Guidelines range, nothing in

Amendment 826 precludes the Court’s consideration

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

The Guidelines amendment thus has not

resolved the constitutional problems with acquitted-

17

conduct sentencing for many defendants. Despite the

U.S. Sentencing Commission’s sound effort to address

one problematic aspect of acquitted-conduct

sentencing, this Court will continue to receive

petitions from both federal and state defendants

asserting their constitutional rights were violated by

judicial sentencing enhancements based on acquitted

conduct. It is time for this Court to take up these

issues, and Coleman’s case provides a fitting and

timely opportunity to do so.

III.

By

Empowering

Prosecutors

and

Impacting All Indictments and Pleas,

Acquitted-Conduct Sentencing Continues

to Distort the Operation of the Entire

Federal Justice System.

Allowing

significant

acquitted-conduct

sentencing enhancements necessarily undermines

the Framers’ vision of American criminal justice

values by taking liberty-protecting authority away

from the people and giving it back to the state and its

agents. See Blakley, 542 U.S. at 306 (“Just as suffrage

ensures the people’s ultimate control in the legislative

and executive branches, jury trial is meant to ensure

their control in the judiciary.”) From Coleman’s and

similar defendants’ perspectives, their jury trials

served not as a mechanism to “prevent oppression by

the Government,” Duncan, 391 U.S. at 155, but rather

as prosecutors’ means to enjoy the first of two distinct

chances to convince either of two courtroom decisionmakers that an individual should be punished based

on questionable accusations. When a sentence can be

18

based on acquitted conduct, a jury trial regarding

disputed allegations serves merely as a dress

rehearsal for a prosecutor to show a judge why an

individual should be punished regardless of the jury

verdict on various counts. Not only does allowing

acquitted-conduct sentencing degrade a fundamental

constitutional right, it also undermines confidence in

the entire criminal justice system.

Indeed, acquitted-conduct sentencing provides

prosecutors with significant benefits (and no obvious

costs) by allowing them to allege and pursue any and

every charge at their disposal among “the sprawling

scope of most criminal codes.” Blakely, 542 U.S. at

311. This circumvention of the jury’s work enables

overzealous prosecutors to run roughshod over the

traditional democratic checks of the adversarial

criminal process the Framers built into the U.S.

Constitution. Prosecutors can brazenly charge any

and all offenses for which there is a sliver of evidence,

then pursue those charges throughout trial without

fear of any consequences when later seeking to make

their case to a sentencing judge. They can overcharge

defendants safe in the belief they can renew their

allegations for judicial reconsideration as long as the

jury finds that the defendant did something wrong.

This enhances prosecutorial power at each major

stage of a criminal prosecution.

First, at the outset of criminal cases, prosecutors

can allege and pursue every possible statutory charge

in order to increase plea bargaining leverage because

they know there will be no real sentencing

19

consequences even upon a jury acquittal on most

charges.

See Clark Neily, A Distant Mirror:

American-Style Plea Bargaining Through the Eyes of

a Foreign Tribunal, 27 Geo. Mason L. Rev. 719, 730

(2020) (“American prosecutors possess a wide array of

levers that they can—and routinely do—bring to bear

on defendants to persuade them to waive their right

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

[including] threatening to use uncharged or even

acquitted conduct to enhance a defendant’s

sentence”). Prosecutors are functionally encouraged

to over-charge defendants, knowing that if they

obtain a conviction on at least one count, they can

“ask[] the judge to multiply a defendant’s sentence

many times over based on conduct for which the

defendant was just acquitted . . . .” Bell, 808 F.3d at

932 (Millett. J, concurring).

Indeed, the prospect of future acquitted-conduct

sentencing requires competent federal defense

attorneys in multi-count cases to inform their clients

that securing a jury acquittal on many charges at trial

may produce little or no Guidelines range benefit, but

likely will preclude the defendant from receiving any

sentencing credit for accepting responsibility. It is

little wonder plea bargaining now “is the criminal

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

(2012) (emphasis in original), when sentencing rules

require defense attorneys to advise clients that

pleading guilty even to the most questionable of

government charges may result in a better sentencing

outcome than if a jury were to reject those charges at

20

trial. See generally Human Rights Watch, An Offer

You Can’t Refuse: How US Federal Prosecutors Force

Drug Defendants to Plead Guilty, Human Rights

Watch,

78–90

(Dec.

5,

2013),

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

suggests that even defendants with strong cases and

good chances of acquittal at trial are choosing to plead

because of the enormous sentencing benefit of doing

so compared to the sentencing risks they face should

they lose at trial”).

Second, at criminal trials, prosecutors can

continue to pursue any and every possible charge,

knowing that there will be no real sentencing

consequences after any jury acquittal. Doing so, even

if the evidence supporting many charges may be weak

or becomes suspect, enables prosecutors to increase

the chances that a jury will be drawn into “making a

determination that the defendant at some point did

something wrong.” Blakely, 542 U.S. at 307. The

more charges a prosecutor pursues at trial, the more

likely it becomes that the defendant will be convicted

on at least one. That is, “[t]he prosecution’s ability to

bring multiple charges increases the risk that the

defendant will be convicted on one or more of those

charges. The very fact that a defendant has been

arrested, charged, and brought to trial on several

charges may suggest to the jury that he must be guilty

of at least one of those crimes.” Missouri v. Hunter,

459 U.S. 359, 372 (1983) (Marshall, J., dissenting); see

21

also Erik Lillquist, The Puzzling Return of Jury

Sentencing: Misgivings About Apprendi, 82 N.C. L.

Rev. 621, 627–28 (2004) (“The ‘compromise’ and

‘decoy’ effects predict that when the jury is presented

with more than one guilty option, the percentage of

defendants found not guilty of both offenses will be

lower than the percentage of defendants found not

guilty when there is just one charge.”). In this

arrangement,

thanks

to

acquitted-conduct

sentencing, the prosecution need not really prove,

beyond a reasonable doubt, “the facts of the crime the

State actually seeks to punish.” Blakely, 542 U.S. at

307 (emphasis in original). So long as it secures a

conviction on something—even if only a relatively

minor charge—the prosecution can achieve its desired

sentence simply by persuading the judge of the

defendant’s conduct by a preponderance of the

evidence.

Third, as criminal cases reach sentencing, and

after having enjoyed the benefit and luxury of the jury

trial serving as a dress rehearsal, prosecutors can and

often will become even more aggressive in the

presentation of offense allegations and related

accusations. Prosecutors can persistently tell judges

(and the authors of a presentence report) that they

are duty-bound to disregard any and all jury

acquittals, rather than reflect upon and respect the

democratic judgment represented by a jury verdict.

Judicial use of acquitted conduct thus permits and

prompts prosecutors to directly disregard and

immediately undermine the jurors’ efforts and to

22

minimize the meaning and value of the citizenry’s

deliberative process and perspective. This practice

diminishes the fairness of a criminal justice system in

many respects and affords the Government two bites

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

J., concurring) (“We have a sentencing regime that

allows the Government to try its case not once but

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

judge.”).

Acquitted-conduct sentencing thus “undermines

the defendant’s fundamental interest in verdict

finality, exposing the defendant to a second mini-trial

on conduct underlying the count of acquittal in

contravention of principles underlying the Fifth and

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

You Don’t Succeed—Abolishing the Use of Acquitted

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

153, 180 (1996).

Finally, the allowance of acquitted-conduct-based

sentences not only marginalizes the work of one of the

criminal justice system’s most critical participants—

jurors—but it also risks leading jurors to no longer

take their work seriously. Jurors, who are called on

to put their lives on hold for public service to advance

justice, are unlikely to be dedicated to their task when

their supposedly significant constitutional role in our

system is regularly undermined at sentencing and

their findings ignored without explanation.2

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

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

2

23

As this and similar cases demonstrate, the

practice of judges significantly enhancing sentences

based on jury-rejected facts “has gone on long

enough.” Jones, 574 U.S. at 949. Amici believes this

Court should grant certiorari in Petitioner’s case in

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

be preserved, in a meaningful way guaranteeing that

the jury [will] still stand between the individual and

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

237.

on an acquitted-conduct Guidelines range after the jury

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

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

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

heightened sentence, the juror wrote to the judge to comment

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

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

deserves,” and lamented that the “defendants are being

sentenced not on the charges for which they have been found

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

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

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

Washington

Times

(June

29,

2008),

https://www.washingtontimes.com/news/2008/jun/29/a-600drug-deal-40-years-in-prison/; Jim McElhatton, “Juror No. 6”

stirs debate on sentencing, The Washington Times (May 3, 2009)

https://www.washingtontimes.com/news/2009/may/3/juror-no-6questions-rules-of-sentencing/. He detailed the toll of jury

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

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

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

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

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

24

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

CORRINE A. IRISH

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

211 Avenue of the

Americas, 26th Floor

New York, NY 10036

corrine.irish@squirepb.com

ellen.phillips@squirepb.com

September 18, 2025

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street

Suite 1825

Denver, CO 80202

303 830 1776

keith.bradley@squirepb.com