Amicus Curiae Brief — Rami Ghanem, Petitioner v. United States

No. 25-970

In the Supreme Court of the United States

___________

RAMI GHANEM, Petitioner,

v.

UNITED STATES OF AMERICA, Respondent.

_________

On Petition for a Writ of Certiorari to the

U.S. Court of Appeals for the Ninth Circuit

_________

MOTION FOR LEAVE TO FILE BRIEF AND

BRIEF OF LAW PROFESSORS DOUGLAS

BERMAN, ABBE SMITH, AND VALERIE HANS

AS AMICI CURIAE IN SUPPORT OF

PETITIONER

_________

CORRINE A. IRISH

SQUIRE PATTON BOGGS

1211 Avenue of the

Americas, 26th Floor

New York, NY 10036

212 872 9800

corrine.irish@squirepb.com

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street

Suite 1825

Denver, CO 80202

303 830 1776

keith.bradley@squirepb.com

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

201 E. Fourth St.

Suite 1900

Cincinnati, OH 45202

513 361 1200

ellen.phillips@squirepb.com

Counsel for Amici Curiae

(1)

UNOPPOSED MOTION FOR LEAVE

Professors Douglas Berman, Valerie Hans, and

Abbe Smith, move the Court for leave to file the

attached brief as amici curiae. Supreme Court Rule

37 provides that all parties must receive notice of the

intent of amicus curiae to file a brief in support of a

petition 10 days before the due date. Amici provided

the requisite notice to all counsel on March 13, 2026,

7 days before the due date.

All parties consented in writing to amici curiae

filing a brief in support of the Petition, despite the

belated notice under Rule 37. The brief of amici

curiae will assist the Court in considering the

Petition, as it raises important policy concerns of

notable criminal justice legal scholars.

Accordingly, because all parties consent and none

will be prejudiced, amici curiae request leave to file

the attached brief.

TABLE OF CONTENTS

PAGE

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

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

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

I.

As Justices and Judges Recognize,

the Historic Rights and Protections

of Jury Trials are Gravely

Undermined when Sentences are

Enhanced After Acquittal or

Dismissal. ........................................ 8

II.

This Case Is Yet Another Example

of Constitutionally Problematic

Sentencing Based on Judge-Found

Facts. ............................................. 11

III.

By Empowering Prosecutors and

Impacting All Indictments and

Pleas, Acquitted-Conduct

Sentencing Continues to Distort the

Operation of the Entire Federal

Justice System. ............................. 13

CONCLUSION ................................................... 19

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99 (2013)........................................5, 8, 11

Apprendi v. New Jersey,

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

Batson v. Kentucky,

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

Blakely v. Washington,

542 U.S. 296 (2004)

.................................................... 5, 8, 13, 14, 16, 17

Duncan v. Louisiana,

391 U.S. 145 (1968)..........................................8, 13

Erlinger v. United States,

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

Jones v. United States, 574 U.S. 948,

949 (2014) .............................................................18

Jones v. United States,

526 U.S. 227, 244-48 (1999)...................................8

McClinton v. United States,

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

Missouri v. Frye,

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

(ii)

Ramos v. Louisiana,

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

Singer v. United States,

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

Southern Union Co. v. United States,

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

United States v. Bell,

808 F.3d 926 (2015) .............................................15

United States v. Booker,

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

United States v. Brooks,

No. CR JKB-18-0408, 2024 WL

4803406 (D. Md. Nov. 15, 2024) ..........................12

United States v. Canania,

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

J., concurring) .......................................... 10, 17, 18

United States v. Coleman,

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

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

United States v. Faust,

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

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

United States v. Gaudin,

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

(iii)

United States v. Ghanem,

143 F.4th 1114 (9th Cir. 2025)

(Collins, J., concurring) .......................................11

United States v. Ghanem,

993 F.3d 1113 (9th Cir. 2021)................................2

United States v. Haymond,

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

United States v. Ibanga,

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

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

United States v. Jacques,

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

2466994 (E.D.N.Y. Aug. 27, 2025) ......................12

United States v. Jones,

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

United States v. Mercado,

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

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

United States v. Papakee,

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

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

United States v. Pimental,

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

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

United States v. Safavian,

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

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

(iv)

United States v. Sharkey,

131 F.4th 621 (8th Cir. 2025) ..............................12

United States v. Spivak,

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

1167185 (N.D. Ohio Apr. 22, 2025) .....................12

United States v. Touray,

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

United States v. Watts,

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

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

Williams v. Florida,

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

Statutes

18 U.S.C. § 2332g ....................................................2, 6

18 U.S.C. § 3553(a).......................................... 4, 12, 13

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

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

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

Other Authorities

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

Succeed—Abolishing the Use of

Acquitted Conduct in Guidelines

Sentencing, 75 N.C. L. Rev. 153, 180

(1996) ....................................................................17

(v)

Clark Neily, A Distant Mirror:

American-Style Plea Bargaining

Through the Eyes of a Foreign

Tribunal, 27 Geo. Mason L. Rev.

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

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) ................................16

Jim McElhatton, A $600 drug deal, 40

years in prison, The Washington

Times (June 29, 2008) .........................................18

Jim McElhatton, “Juror No. 6” stirs

debate on sentencing, The

Washington Times (May 3, 2009) .......................18

INTEREST OF AMICI CURIAE1

Amici are legal scholars who teach, conduct

research, and practice in the fields of criminal law and

sentencing in the United States. Professor Douglas

Berman is the co-author of the casebook Sentencing

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

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

Sentencing Reporter for more than a quarter century.

Professor Berman is also the sole creator and author

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

which this Court and numerous lower courts have

cited. Professor Abbe Smith has authored numerous

works, including Guilty People (Rutgers University

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

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

and has served on the American Board of Criminal

Lawyers since 2010. Professor Vanessa Hans is one

of the nation’s leading authorities on the jury system,

and has authored or edited 10 books and over 150

research articles, including Juries, Lay Judges, and

Mixed Courts: A Global Perspective (2021) and

American Juries: The Verdict (2007).

Amici have a professional interest in ensuring

that federal sentencing law is interpreted and applied

in a manner that coherently advances its purposes

and is consistent with longstanding constitutional

principles and with contemporary function in the

criminal law.

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

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

counsel, made a monetary contribution to the preparation or

submission of this brief. As set forth in the contemporaneouslyfiled motion for leave, all parties received notice seven days

before this filing and consented to filing.

2

SUMMARY OF ARGUMENT

Rami Ghanem, upon being accused by federal

authorities of various crimes, invoked “constitutional

protections of surpassing importance,” Apprendi v.

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

trial rights “designed ‘to guard against a spirit of

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

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

defended against a 18 U.S.C. § 2332g charge and the

jury convicted him under erroneous jury instructions.

Without the erroneous instructions, there was “a

reasonable likelihood” Ghanem would have been

acquitted, according to the Ninth Circuit. United

States v. Ghanem, 993 F.3d 1113, 1130 (9th Cir.

2021). The Ninth Circuit, seeking to respect the

defendant’s constitutional rights, vacated Ghanem’s

conviction and remanded for resentencing. See id.

The Government chose not to retry Ghanem, and

instead proceeded to sentencing for lesser charges to

which Ghanem pled guilty. Despite having no valid

jury conviction for the § 2332g change, the

Government advocated for the same 30-year sentence

Ghanem had received before his most serious

conviction was vacated (based on a 22-year upward

variance from the applicable Guidelines range). The

court complied, sentencing Ghanem as if the

invalidation of his jury conviction was legally

insignificant while relying on judge-found facts

related to the vacated and legally invalid § 2332g

conviction. This case thus raises the oft-recurring

issue of whether the Constitution places any limits on

judicial fact-finding at sentencing relating to charges

on which the defendant has been acquitted or which

3

the prosecution has abandoned after a conviction has

been vacated.

Several members of this Court flagged concerns

with acquitted conduct sentencing just three years

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

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

McClinton, with Members of this Court suggesting

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

by the 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). Multiple Justices at that time stressed

the range of deep constitutional issues raised by

various sentencing practices that risk undermining

Fifth and Sixth Amendment commands. See id. at

2402 (Sotomayor, J., statement respecting the denial

of certiorari) (discussing “concerns about procedural

fairness and accuracy when the State gets a second

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

concurring in the denial of certiorari) (contending

“there is no relevant difference for [constitutional]

purposes between acquitted conduct and uncharged

conduct”).

In 2024, the Sentencing Commission amended the

Guidelines’ relevant conduct rules to formally exclude

only “conduct for which the defendant was criminally

charged and acquitted in federal court, unless such

conduct also establishe[d], in whole or in part, the

instant offense of conviction.” U.S.S.G. App. C,

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

written, the Guidelines still leave unclear exactly

when and how jury acquittals will limit judicial

enhancement of Guideline sentencing ranges, and it

4

is quite clear that judges are still permitted (and

perhaps statutorily obligated) to rely upon acquitted

conduct when exercising their broader statutory

sentencing discretion under 18 U.S.C. § 3553(a).

Consideration of dismissed conduct to ground

significant Guidelines enhancements or major

upward variances is not addressed by the amendment

whatsoever, leaving district courts free to impose

extreme enhanced punishments for crimes on which

prosecutors were unable to secure a valid conviction.

That is precisely what occurred here, with the district

court imposing an upward variance of 22 years to

punish Ghanem for a conviction that the Ninth

Circuit vacated as legally unsound.

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

work revising the Guidelines and even proposals in

Congress to amend various federal sentencing

statutes do not and cannot define the constitutional

guardrails that must apply to the sentencing of

criminal defendants in state courts. Only this Court

can provide nationwide constitutional guidance

regarding how the Fifth and Sixth Amendments

impact the consideration of acquitted or dismissed

conduct in sentencing for all criminal justice systems.

See McClinton, 143 S. Ct. at 2403 (Alito, J.,

concurring in the denial of certiorari) (noting that any

action by the Commission “will not affect state courts,

and therefore the constitutional issue will remain”).

Understandably, many state courts and lower

federal courts continue to read this Court’s past

jurisprudence to call for treating judicial fact-finding

on acquitted or dismissed conduct at sentencing as

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

5

about the importance of Fifth and Sixth Amendment

rights as a limit on government power are to have real

purchase—and if the text, history and traditions

embraced by the Founders of our Nation are to be

given enduring meaning—the Court should grant

review in this case to articulate sound limits on

judicial authority to increase a sentence based on

charges pursued by prosecutors that resulted in an

acquittal or were dismissed by the prosecution

without securing a valid jury conviction.

This Court has repeatedly extolled and stressed

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

decide facts essential to punishment: “Only a jury,

acting on proof beyond a reasonable doubt, may take

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

Constitution’s most vital protections against

arbitrary government.” United States v. Haymond,

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

Erlinger v. United States, 602 U.S. 821 (2024); Alleyne

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

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

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

relies on facts a jury rejected or never fairly

considered to increase a sentence, the jury trial

“promise” becomes empty and this “vital” protection

against the government becomes illusory.

This case2 presents a timely vehicle for this Court

to grant certiorari, receive full briefing, and hear

2 Amici are also aware of another pending petition raising the

related and more common issue of acquitted-conduct sentencing,

United States v. Pharms, No. 25-1086. Amici posit that the two

cases, raising different facets of the same fundamental Fifth and

Sixth Amendment concerns, each present timely vehicles for

resolving the scope of how judges may rely on facts related to

6

these and all other arguments regarding important

and persistent questions that arise in many cases.

The original meaning and proper application of the

jury trial right in the Sixth Amendment and the due

process right in the Fifth and Fourteenth

Amendments with respect to judicial punishment

increases based on acquitted or dismissed conduct

should be directly addressed.

For these reasons, the Court should grant

Ghanem’s petition for a writ of certiorari.

ARGUMENT

After a jury convicted Rami Ghanem of conspiring

to acquire, transport, and use surface-to-air missiles

in violation of 18 U.S.C. § 2332g under legally

erroneous jury instructions, the Ninth Circuit

properly vacated that conviction. The Government

then had the opportunity to re-try Mr. Ghanem in a

full and fair trial before a different jury. But, rather

than respecting that the Constitution places “the jury

at the heart of our criminal justice system,” Erlinger,

602 U.S. at 831, federal prosecutors forwent trying

Ghanem by jury and instead encouraged the district

court to sentence Ghanem in exactly the same way as

if he had been convicted of the vacated charge. Such

disregard of the jury’s role in the United States’

criminal justice system suggests prosecutorial and

judicial views of the Fifth and Sixth Amendments as

a mere procedural formality, even though this Court

has repeatedly emphasized that the reach and

application of jury trial rights should not be driven by

“Sixth Amendment formalism, but by the need to

charges a jury expressly rejected or that were dismissed by

prosecutors without securing a valid conviction.

7

preserve Sixth Amendment substance.”

United

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

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

Sixth Amendment “principles represent not

procedural formalities but fundamental reservations

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

Despite the constitutional issues resulting from

upward sentencing variances based on an alleged

offense never properly considered by a jury, the

district judge relied upon the vacated conviction to

impose a sentence 22 years above the top of the

Guidelines range. The people’s role in determining

the truth of the prosecutors’ accusations was ignored;

the vacatur of Ghanem’s illegitimate conviction was

functionally nullified by the judge through his

sentencing decision-making.

When vacaturs of flawed convictions carry no real

sentencing consequences, prosecutors have nothing to

lose (and much to gain) from engaging in unfair trial

practices. Prosecutors can disregard a defendant’s

right to a full and fair trial, safe in the belief that even

vacatur of a conviction on appeal will not preclude

them from renewing their allegations for judicial

reconsideration as long as the defendant is being

sentenced for any offense. Under such practices, the

sentencing becomes a trial, and the trial becomes just

a convenient dress rehearsal for prosecutors. Any

sentencing

rules

that

permit

substantive

circumvention of the jury trial right and related

constitutional protections enables overzealous

prosecutors to run roughshod over the traditional

democratic checks of the adversarial criminal process

the Framers built into the U.S. Constitution. See

Erlinger, 602 U.S. at 832 (stressing how the jury trial

8

right seeks to “mitigate the risk of prosecutorial

overreach and misconduct, including the pursuit of

‘pretended offenses’ and ‘arbitrary convictions’”

(quoting The Federalist No. 83, p. 499 (C. Rossiter ed.

1961))).

I.

As Justices and Judges Recognize, the

Historic Rights and Protections of Jury

Trials are Gravely Undermined when

Sentences are Enhanced After Acquittal

or Dismissal.

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.”

9

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

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

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

essential to prevent a slide back toward regimes like

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

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

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

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

1958)).

Yet oft-repeated proclamations about the

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

between the State and the accused,” Southern Union

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

disturbingly hollow for Ghanem and other defendants

when, after being vindicated by jury acquittals or

vacaturs of legally flawed convictions, prosecutors are

still permitted to seek, and judges are still be

permitted to impose, increased sentences based on the

very same allegations for which no proper conviction

was obtained. Convictions, in these cases, are only

formal matters; there is no limit on the state’s effort

to punish based on allegations a jury either rejected

or never fairly considered.

Ghanem and other

defendants subject to sentences enhanced by

acquitted or dismissed conduct are left to wonder just

what kind of “bulwark” or “safeguard” the Fifth and

Sixth Amendments truly provide if and when

prosecutors and judges can entirely disregard the jury

trial requirement at sentencing. When prosecutors

are empowered to pursue procedural loopholes in the

operation of our criminal justice system, such as when

they can claim a vacatur of a flawed conviction on

appeal has no impact on sentencing outcomes, they

are emboldened to view constitutional rights as mere

10

tripwires to be avoided whenever and however

possible.

Recognizing the fundamental tension between

sentence enhancements based on acquitted conduct

and giving real meaning to jury trial rights, Justices

of this Court and lower court judges have described

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

“Kafka-esque,”

“uniquely

malevolent,”

and

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

170 (1997) (Stevens, J., dissenting); United States v.

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

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

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

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

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

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

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

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

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

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

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

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

(D. Mass. 2005) (Gertner, J.). The concerns expressed

by so many jurists about the circumvention of jury

trial rights also apply to the practice of increasing

sentences based on vacated or dismissed conduct,

such as here.

Ghanem was not ultimately afforded the

protections guaranteed by the Fifth and Fourteenth

Amendments, but was sentenced well above what was

reasonable under the Guidelines applicable to his

proper convictions. Judge-found facts guided the

sentencing, not a sound conviction by a jury of

11

Ghanem’s peers as the Constitution guarantees.

Indeed, Judge Collins concurred in the opinion below,

noting “how this case starkly illustrates a very

troubling feature” of criminal sentencing. United

States v. Ghanem, 143 F.4th 1114, 1132 (9th Cir.

2025) (Collins, J., concurring). She encouraged this

Court to “address this disquieting anomaly” of a

jurisprudence that purportedly protects Fifth and

Sixth Amendment rights, and yet allows judicial

factfinding to significantly increase prison sentences.

Id. at 1134.

II.

This Case Is Yet Another Example of

Constitutionally Problematic Sentencing

Based on Judge-Found Facts.

Ghanem’s case demonstrates clearly how judicial

fact-finding can still drive sentencing outcomes that

are not supported by sound jury verdicts. The district

judge expressly based a significant upward variance

on facts underlying a charge that was never fairly

tried to a jury, led to a faulty verdict that was vacated

by the Court of Appeals, and then was dropped by the

Government. Critically, the ruling below made clear

that the judge-found facts related to the dismissed

charge was “essential to the punishment imposed.” 1

J. Bishop, Criminal Procedure 50 (2d ed. 1872); cf.

Alleyne, 570 U.S. at 109–10 (Thomas, J., plurality op.)

(describing the significance of “a well-established

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

12

defendants

like

Ghanem

serving

longer,

constitutionally-suspect sentences based on judgefound facts related to acquitted or dismissed conduct.

See, e.g., United States v. Touray, 151 F.4th 1317

(11th Cir. 2025) (upholding sentence based on

acquitted conduct based on the pre-amendment

Guidelines); United States v. Sharkey, 131 F.4th 621,

623 (8th Cir. 2025) (holding that the sentencing court

was not required “to apply proposed amendments to

the Sentencing Guidelines that would prohibit

consideration of acquitted conduct”).

Moreover,

judges have noted the various situations in which the

new Guidelines amendment does not itself 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

13

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 sentencing

based on acquitted or dismissed conduct. Despite the

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

one problematic aspect of acquitted-conduct

sentencing, this Court will continue to receive

petitions from both federal and state defendants

asserting their constitutional rights were violated by

judicial sentencing based on judge-found facts related

to charges for which a defendant was not convicted.

It is time for this Court to take up these issues, and

Ghanem’s case provides a fitting and timely

opportunity to do so.

III.

By

Empowering

Prosecutors

and

Impacting All Indictments and Pleas,

Acquitted-Conduct Sentencing Continues

to Distort the Operation of the Entire

Federal Justice System.

Allowing significant sentencing variances based

on dismissed or acquitted conduct undermines the

Framers’ vision of American criminal justice values

by taking liberty-protecting authority away from the

people and giving it to the state and its agents. See

Blakley, 542 U.S. at 306 (“Just as suffrage ensures the

people’s ultimate control in the legislative and

executive branches, jury trial is meant to ensure their

control in the judiciary.”) From Ghanem’s and

similar defendants’ perspectives, the jury trial right

does not “prevent oppression by the Government,”

Duncan, 391 U.S. at 155, but is rather a mere

14

formality that can be disregarded if the prosecutors

manage to convince another government agent to

severely punish a defendant for dismissed or

acquitted conduct. When a sentence can be based on

conduct for which a jury never convicted the

defendant, 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, and

regardless of whether a conviction withstands an

appeal. Not only does allowing acquitted-conduct and

dismissed-conduct sentencing degrade a fundamental

constitutional right, it also undermines confidence in

the entire criminal justice system.

Indeed, this sentencing practice provides

prosecutors with significant benefits (and no obvious

costs) by allowing them to allege and pursue any and

every charge at their disposal among “the sprawling

scope of most criminal codes,” and pursue the

presentation of all manner of allegations without real

concern for legal or procedural trial rules intended to

prevent illegal and wrongful convictions. Blakely, 542

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

rejected by a jury or a completely invalid conviction

successfully challenged on appeal will provide a

criminal defendant no relief from prosecutorial

overreach if sentencing doctrines pay no \heed to jury

verdicts and appellate reversals. The opportunity to

circumvent both a jury’s work and appellate review

enables overzealous prosecutors to run roughshod

over the traditional democratic checks of the

adversarial and law-based criminal process the

Framers built into the U.S. Constitution. Prosecutors

can brazenly charge any and all offenses for which

there is a sliver of evidence, then pursue those

15

charges throughout trial, even a fundamentally

unfair trial, without fear of any consequences when

later seeking to make their case to a sentencing judge.

This enhances prosecutorial power at each major

stage of a criminal prosecution.

First, at the outset of criminal cases, prosecutors

can allege and pursue every possible statutory charge

in order to increase plea bargaining leverage because

they know there will be no real sentencing

consequences even upon a jury acquittal or appellate

reversal of most charges. See Clark Neily, A Distant

Mirror: American-Style Plea Bargaining Through the

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

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

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

bring to bear on defendants to persuade them to waive

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

. . [including] threatening to use uncharged or even

acquitted conduct to enhance a defendant’s

sentence”). Prosecutors are functionally encouraged

to over-charge defendants and even have little

concern for legally or factually suspect charges,

knowing that if they obtain a conviction on at least

one count that will withstand appeal, they can “ask[]

the judge to multiply a defendant’s sentence many

times over based on conduct for which the defendant

was just acquitted . . . .” United States v. Bell, 808

F.3d 926, 932 (2015) (Millett. J, concurring).

Indeed, the prospect of future sentences based on

dismissed or acquitted conduct requires competent

federal defense attorneys in multi-count cases to

inform their clients that securing a jury acquittal on

many charges at trial or vacatur of convictions on

appeal may produce little or no sentencing benefit,

16

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

trial. See generally Human Rights Watch, An Offer

You Can’t Refuse: How US Federal Prosecutors Force

Drug Defendants to Plead Guilty, Human Rights

Watch,

78–90

(Dec.

5,

2013),

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

suggests that even defendants with strong cases and

good chances of acquittal at trial are choosing to plead

because of the enormous sentencing benefit of doing

so compared to the sentencing risks they face should

they lose at trial”).

Second, at criminal trials, prosecutors can

continue to pursue any and every possible charge, and

try their case without regard for procedural or legal

safeguards, knowing that acquittals or vacaturs on

appeal carry no real sentencing consequences. Doing

so, even if the evidence supporting many charges may

be weak or becomes legally suspect, enables

prosecutors to increase the chances that a jury will be

drawn into “making a determination that the

defendant at some point did something wrong.”

Blakely, 542 U.S. at 307. In this arrangement thanks

to acquitted or dismissed conduct sentencing, the

prosecution does not really need to prove, beyond a

reasonable doubt, “the facts of the crime the State

17

actually seeks to punish.” Blakely, 542 U.S. at 306–

07. So long as it secures a conviction on something—

even if only a relatively minor charge to which the

defendant pled guilty—the prosecution can achieve

its intended sentence simply by persuading the judge

of the defendant’s conduct by a preponderance of the

evidence.

Third, as criminal cases reach sentencing,

prosecutors can and often will become even more

aggressive in the presentation of offense allegations

and related accusations. Prosecutors can persistently

tell judges (and the authors of a presentence report)

that they must disregard any and all jury acquittals

and appellate reversals, rather than reflect upon and

respect the democratic judgment and legal norms.

This practice diminishes the fairness of a criminal

justice system in many respects and affords the

Government two bites at the apple. See Canania, 532

F.3d at 776 (Bright, J., concurring) (“We have a

sentencing regime that allows the Government to try

its case not once but twice. The first time before a

jury; the second before a judge.”). This “undermines

the defendant’s fundamental interest in verdict

finality, exposing the defendant to a second mini-trial

on conduct underlying the count of acquittal in

contravention of principles underlying the Fifth and

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

You Don’t Succeed—Abolishing the Use of Acquitted

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

153, 180 (1996).

Finally, the allowance of sentences based on

conduct rejected or never fairly considered by a jury

not only marginalizes the work of one of the criminal

justice system’s most critical participants—jurors—

18

but it also risks leading jurors to no longer take their

work seriously. Jurors, who are called on to put their

lives on hold for public service to advance justice, are

unlikely to be dedicated to their task when their

supposedly significant constitutional role in our

system is regularly undermined at sentencing.3

As this and similar cases demonstrate, the

practice of judges significantly increasing sentences

based on judge-found facts related to acquitted or

dismissed conduct “has gone on long enough.” Jones

v. United States, 574 U.S. 948, 949 (2014) (Scalia, J.,

dissenting, joined by Thomas, J., and Ginsburg, J.).

Amici believes this Court should grant certiorari in

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

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

on an acquitted-conduct Guidelines range after the jury

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

which would have been 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).

3

19

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.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari should be granted.

Respectfully submitted,

KEITH BRADLEY

Counsel of Record

SQUIRE PATTON BOGGS

717 17th Street, Ste. 1825

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CORRINE A. IRISH

SQUIRE PATTON BOGGS

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Americas, 26th Floor

New York, NY 10036

corrine.irish@squirepb.com

ELLEN H. PHILLIPS

SQUIRE PATTON BOGGS

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Cincinnati, OH 45202

ellen.phillips@squirepb.com

March 20, 2026