Amicus Curiae Brief — Rami Ghanem, Petitioner v. United States
Supreme Court briefMar 20, 2026
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No. 25-970
In the Supreme Court of the United States
________________________
RAMI GHANEM,
v.
UNITED STATES,
Petitioner,
Respondent.
___________________________________________
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
___________________________________________
MOTION FOR LEAVE TO FILE THE BRIEF
AND BRIEF OF NATIONAL ASSOCIATION OF
CRIMINAL DEFENSE LAWYERS AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
___________________________________________
Joshua L. Dratel
LAW OFFICES OF
DRATEL AND LEWIS
29 Broadway, Ste 1412
New York, NY 10006
(212) 732-0707
jdratel@dratellewis.com
Joseph Aaron Pace
Counsel of Record
J. PACE LAW, PLLC
30 Wall St., 8th Fl.
New York, NY 10005
(646) 300-4304
jpace@jpacelaw.com
Attorneys for Amicus Curiae
United States Commercial Printing Company • www.uscpc.us • (202) 866-8558
i
UNOPPOSED MOTION FOR LEAVE TO FILE
THE AMICUS BRIEF
Amicus National Association of Criminal Defense
Lawyers moves this Court pursuant to Rule 21 for
leave to file the attached brief as amicus curiae.
S. Ct. R. 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. Amicus
provided the requisite notice to all counsel on March
13, 2026, 7 days before the due date.
All parties consented in writing to amicus curiae filing a brief in support of the petition, despite the belated notice under S. Ct. R. 37. The brief of amicus curiae will assist this Court in considering the Petition
for reasons explained herein. Accordingly, because all
parties consent and none will be prejudiced, amicus
curiae requests leave to file the attached brief.
ii
TABLE OF CONTENTS
Unopposed Motion for Leave to
File the Amicus Brief.................................................... i
Table of Authorities ................................................... iii
Interest of Amicus Curiae ........................................... 1
Summary of Argument ................................................ 2
Argument ..................................................................... 5
I.
The Use of Uncharged, Dismissed, and
Acquitted Conduct To Increase a Defendant’s
Authorized Sentence Impermissibly Burdens
the Sixth Amendment Right to Trial by Jury . 5
A.
The Trial Penalty Has Driven Criminal
Jury Trials to the Brink of Extinction ......... 5
B.
Permitting Courts to Use Uncharged,
Dismissed, and Acquitted Conduct to
Increase the Defendant’s Authorized
Punishment Dramatically Magnifies the
Trial Penalty ................................................. 7
C.
Empowering Prosecutors to Seek Dramatic
Enhancements Based on Uncharged,
Dismissed, and Acquitted Conduct Corrupts
the Criminal Justice System ...................... 21
Conclusion .................................................................. 23
iii
TABLE OF AUTHORITIES
Cases
Addington v. Texas,
441 U. S. 418 (1979)................................................ 12
Blakely v. Washington,
542 U. S. 296 (2004)................................................ 11
Bordenkircher v. Hayes,
434 U. S. 357 (1978).................................................. 7
Cage v. Louisiana,
498 U. S. 39 (1990).................................................. 11
California v. Green,
399 U. S. 149 (1970)................................................ 12
Codispoti v. Pennsylvania,
418 U. S. 506 (1974).................................................. 5
Daubert v. Merrell Dow Pharmaceuticals,
509 U. S. 579 (1993)................................................ 13
Erlinger v. United States,
602 U. S. 821 (2024)............................................... 5-6
In re Winship,
397 U. S. 358 (1970)................................................ 11
J.E.B. v. Alabama ex rel. T.B. ,
511 U. S. 127 (1994)................................................ 11
Jones v. United States,
526 U. S. 227 (1999).................................................. 6
Lafler v. Cooper,
566 U. S. 156 (2012).................................................. 6
Miranda v. Arizona,
384 U. S. 436 (1966)................................................ 19
iv
Missouri v. Frye,
566 U. S. 134 (2012).................................................. 6
Nijhawan v. Holder,
557 U. S. 29 (2009).................................................... 9
Ramos v. Louisiana,
590 U. S. 83 (2020).................................................... 5
Tellabs, Inc. v. Makor Issues & Rights, Ltd.,
551 U. S. 308 (2007)................................................ 12
United States v. Acosta,
303 F. 3d 78 (1st Cir. 2002) .................................... 20
United States v. Armstrong,
920 F. 3d 395 (6th Cir. 2019) ................................. 13
United States v. Behr,
93 F. 3d 764 (11th Cir. 1996) ................................. 20
United States v. Bell,
808 F. 3d 926 (D.C. Cir. 2015) ............................... 19
United States v. Berthiaume,
233 F. 3d 1000 (7th Cir. 2000) ............................... 13
United States v. Borjas,
402 F. App'x 21 (5th Cir. 2010) .............................. 13
United States v. Brewster,
116 F. 4th 1051 (9th Cir. 2024) .............................. 12
United States v. Cook,
550 F. 3d 1292 (10th Cir. 2008) ............................. 13
United States v. Faust,
456 F. 3d 1342 (11th Cir. 2006) ............................. 12
United States v. Fisher,
502 F. 3d 293 (3d Cir. 2007) ................................... 12
v
United States v. Galvan,
949 F. 2d 777 (5th Cir. 1991) ................................. 13
United States v. Gaudin,
515 U. S. 506 (1995).................................................. 5
United States v. Ghanem,
143 F. 4th 1114 (9th Cir. 2025) .............................. 20
United States v. Greene,
71 F. 3d 232 (6th Cir. 1995) ................................... 13
United States v. Grier,
475 F. 3d 556 (3d Cir. 2007) ............................... 8, 13
United States v. Hamad,
495 F. 3d 241 (6th Cir. 2007) ................................. 13
United States v. Haymond,
588 U. S. 634 (2019).................................................. 5
United States v. Hogue,
998 F. 3d 745 (7th Cir. 2021) ................................. 13
United States v. Ibanga,
271 F. App'x 298 (4th Cir. 2008) .............................. 9
United States v. Lucas,
101 F. 4th 1158 (9th Cir. 2024) .......................... 8, 12
United States v. Mays,
593 F. 3d 603 (7th Cir. 2010) ................................. 14
United States v. Neal,
611 F. 3d 399 (7th Cir. 2010) ................................. 14
United States v. Pirosko,
787 F. 3d 358 (6th Cir. 2015) ................................. 14
United States v. Robinson,
482 F. 3d 244 (3d Cir. 2007) .............................. 12-13
vi
United States v. Shackelford,
462 F. 3d 794 (8th Cir. 2006) ................................. 13
United States v. Seymour,
94 F. 4th 679 (7th Cir. 2024) .................................. 20
United States v. Texidor,
164 F. 4th 248 (3d Cir. 2026) ................................... 9
United States v. Ware,
141 F. 4th 970 (8th Cir. 2025) ............................ 9, 18
United States v. Watts,
519 U. S. 148 (1997).................................................. 8
United States v. Wise,
976 F. 2d 393 (8th Cir. 1992) ................................. 13
Statutes, Rules, and Regulations
U. S. Const., Amdt. V ............................................ 1, 4, 8
U. S. Const., Amdt. VI ........................................... 1-5, 8
18 U. S. C. § 922........................................................... 10
18 U. S. C. § 924........................................................... 10
18 U. S. C. § 1014...................................................... 8-10
18 U. S. C. § 1341........................................................... 8
18 U. S. C. § 1343........................................................... 8
18 U. S. C. § 1344........................................................... 8
18 U. S. C. § 1348........................................................... 8
18 U. S. C. § 1519..................................................... 8, 10
18 U. S. C. § 3500......................................................... 14
18 U. S. C. § 3552......................................................... 14
18 U. S. C. § 3553.................................... 9-10, 15-16, 18
vii
18 U. S. C. § 3661......................................................... 12
21 U. S. C. § 841...................................................... 3, 8-9
S. Ct. R. 37.2 .................................................................. 1
Fed. R. Crim. P. 11 ...................................................... 16
Fed. R. Crim. P. 16 ................................................ 11, 14
Fed. R. Crim. P. 32 ................................................. 14-15
Fed. R. Evid. 1101 ....................................................... 12
U. S. S. G. § 1B1.3 ................................................. 8-9, 19
U. S. S. G. §1B1.4........................................................... 9
U. S. S. G. § 2B1.1 .................................................. 10, 17
U. S. S. G. § 2D1.1 .......................................................... 9
U. S. S. G. § 2J1.2 ......................................................... 10
U. S. S. G. § 2X3.1 ........................................................ 10
U. S. S. G. § 3A1.1 ........................................................ 10
U. S. S. G. § 3B1.1 ........................................................ 10
U. S. S. G. § 3E1.1 ........................................................ 17
U. S. S. G. § 3B1.3 ........................................................ 10
U. S. S. G. § 5A .................................................... 9-10, 17
Other Authorities
American Bar Association, Plea Bargain Task Force
Report (Feb 2023) ..................................................... 7
Andrew Manuel Crespo, The Hidden Law of Plea
Bargaining, 118 Colum. L. Rev. 1304 (2018) ......... 6
Jed S. Rakoff, Why Do Innocent People Plead Guilty,
N.Y. Rev. of Books, Nov. 20, 2014 ..................... 7, 22
viii
Maneka Sinha, Junk Science at Sentencing, 89 Geo.
Wash. L. Rev. 52 (2021) ......................................... 14
Mary Patrice Brown & Steven E. Bunnell, Negotiating Justice: Prosecutorial Perspectives on Federal
Plea Bargaining in the District of Columbia, 43
Am. Crim. L. Rev. 1063 (2006) .............................. 16
Melissa Hamilton, McSentencing: Mass Federal Sentencing and the Law of Unintended Consequences,
35 Cardozo L. Rev. 2199 (2014) ............................. 15
NACDL, The Trial Penalty: The Sixth Amendment
Right to Trial on the Verge of Extinction and How
to Save It (2018) .................................... 1-2, 6, 15, 21
Richard Smith-Monahan, Unfinished Business: The
Changes Necessary to Make Guidelines Sentencing
Fair, 12 Fed. Sent. R. 219 (Jan/Feb 2000) ............ 14
Russell M. Gold, Carissa Byrne Hessick, F. Andrew
Hessick, Civilizing Criminal Settlements, 97 B.U.
L. Rev. 1607 (2017) ................................................ 16
Sonja B. Starr & M. Marit Rehavi, Mandatory Sentencing and Racial Disparity: Assessing the Role of
Prosecutors and the Effects of Booker, 123 Yale L.
J. 2 (2013) ............................................................... 15
U. S. S. C., 2024 Sourcebook - Table 11, Guilty Pleas
and Trials in Each Circuit and District ................. 6
INTEREST OF AMICUS CURIAE 1
Founded in 1958, the National Association of Criminal Defense Lawyers (NACDL) is a nonprofit, voluntary professional bar association that works on behalf
of criminal defense attorneys to ensure justice and
due process for those accused of crimes and misconduct. It has a nationwide membership of many thousands of direct members and up to 40,000 affiliate
members. NACDL’s members include private criminal defense lawyers, public defenders, military defense counsel, law professors, and judges. NACDL is
the only nationwide professional bar association for
public defenders and private criminal defense lawyers.
It is dedicated to advancing the proper, efficient, and
fair administration of justice. It files many amicus
briefs each year in this Court and in other federal and
State courts around the country on a broad range of
issues of importance to criminal defendants, criminal
defense lawyers, and the criminal justice system.
NACDL has a substantial institutional interest in
safeguarding the Sixth Amendment right to trial by
jury and ensuring that deprivations of liberty occur in
a manner consistent with the Fifth Amendment. To
that end, it has extensively documented the ways in
which the trial penalty pressures defendants to forgo
the jury right, including in a landmark 2018 report.
See NACDL, The Trial Penalty: The Sixth Amendment
1 No counsel for a party authored this brief in whole or in part,
and no person other than amicus curiae, its members, or its counsel made a monetary contribution to it. Amicus gave the Government seven days’ notice of its intent to file the instant amicus
brief, and the Government consented to filing, notwithstanding
the 10-day notice requirement set forth in S. Ct. R. 37.2.
2
Right to Trial on the Verge of Extinction and How to
Save It (2018) (The Trial Penalty). This case directly
implicates those concerns. As explained below, the
rule permitting courts to dramatically increase sentences based on uncharged, dismissed, and acquitted
conduct furnishes prosecutors with a potent means of
inducing defendants to surrender their jury-trial right.
That form of trial penalty is especially corrosive because it allows prosecutors to credibly threaten severe
punishment based on facts found only by a judge, under a mere preponderance standard, and on the basis
of evidence that would never be admissible at trial.
NACDL submits this brief to explain how this practice
has helped displace the jury trial with a plea-driven
system largely insulated from meaningful adversarial
testing or public scrutiny, and thus in deep tension
with the constitutional structure the Framers ordained.
SUMMARY OF ARGUMENT
This Court’s Sixth Amendment jurisprudence has
repeatedly extolled the right to trial by jury. It has
characterized that right as fundamental to our
scheme of justice, a bulwark against government tyranny, and an essential check on the judiciary. And it
has repeatedly urged vigilance against the gradual
erosion of that right.
Yet the criminal jury trial has largely vanished. Today, more than 97% of federal convictions are secured
pursuant to guilty pleas. The reason for this decline
is straightforward: the trial penalty. Prosecutors possess an arsenal of tools they can use to penalize defendants who avail themselves of their jury right. Of
those tools, one of the most pernicious—and
3
constitutionally problematic—is the ability to
threaten dramatic sentencing increases based on uncharged, acquitted, and dismissed conduct.
The trial penalty in this context results from the
confluence of three factors. First, according to the prevailing view in the circuits, the only Sixth Amendment restriction on using uncharged, dismissed, and
acquitted conduct at sentencing is that the ultimate
sentence fall within the offense of conviction’s statutory range. But the ranges for many commonly
charged crimes meet or exceed 20 years, which means
that the potential trial penalty a prosecutor can
threaten at sentencing is often measured in years or
decades. The parade of horribles writes itself. A prosecutor might, for example, charge the sale of a single
oxycodone pill in violation of 21 U. S. C. § 841(b)(1)(C)
and then threaten to seek the statutory maximum (20
years) on the ground that the defendant participated
in a broader, uncharged drug conspiracy. Second, the
procedural protections afforded defendants at trial
largely vanish at sentencing. The government need
establish sentencing facts only by a preponderance of
the evidence, and it may do so through evidence that
would be inadmissible before a jury. Thus, not only is
the threatened penalty severe—prosecutors face comparatively few impediments to making good on their
threat. Third, prosecutors largely control which incriminating facts reach the sentencing court in the
first place. That control gives them powerful leverage
to extract pleas in exchange for favorable factual stipulations or promises not to seek enhancements.
Given those realities, many defendants rationally
conclude that the price of insisting on a jury trial is
simply too high. The pressure is especially acute in
4
multi-count cases where anything less than complete
acquittal is a pyrrhic victory. Under the current regime, a defendant who is acquitted of murder but convicted of a small-scale drug conspiracy may still be
punished for the killing of which the jury found him
innocent—and if the statutory maximum for the drug
charge is life, he may be sentenced to life even if his
Guidelines range would otherwise have been a short
term of years. A defendant who gets the murder
charge dismissed is in a similar, if not worse, position,
since the court can treat the dismissed murder charge
as “relevant conduct” and factor it directly into the
Guidelines range. The result is that defendants who
lack complete certainty that they can secure an acquittal on all charges face overwhelming pressure to
plead guilty to every charge—even those that are legally defective or factually weak—in exchange for a
promise of leniency at sentencing.
The corrosive effects of this practice reverberate
throughout the criminal justice system. Prosecutors
may overcharge when it suits them, knowing that
even if the charge gets dismissed or results in acquittal, they will get a second bite at the apple at sentencing. Or they may withhold a charge and introduce the
misconduct for the first time at sentencing, where the
defendant has no confrontation rights and far fewer
tools with which to rebut the accusation.
The problem, in short, is not merely that the use of
uncharged, dismissed, and acquitted conduct to impose otherwise substantively unreasonable sentences
runs afoul of the Fifth and Sixth Amendments. It is
that the practice systematically pressures defendants
not to invoke those protections in the first place,
thereby contributing to the dismantling of the
5
constitutional system the Framers envisioned. This
Court should grant the petition and put an end to this
practice once and for all.
ARGUMENT
I.
The Use of Uncharged, Dismissed, and
Acquitted Conduct To Increase a
Defendant’s Authorized Sentence
Impermissibly Burdens the Sixth
Amendment Right to Trial by Jury
A. The Trial Penalty Has Driven
Criminal Jury Trials to the Brink of
Extinction
This Court’s jurisprudence has repeatedly emphasized the central importance of the jury trial in our
constitutional structure. The Sixth Amendment’s
trial guarantee, the Court has explained, “is fundamental to the American scheme of justice.” Ramos v.
Louisiana, 590 U. S. 83, 93 (2020). It “guard[s] against
a spirit of oppression and tyranny on the part of rulers,” United States v. Gaudin, 515 U. S. 506, 510-511
(1995) (quotation marks omitted), “preserve[s] the
people’s authority over its judicial functions,” United
States v. Haymond, 588 U. S. 634, 641 (2019), and acts
as a bulwark “against arbitrary law enforcement.”
Codispoti v. Pennsylvania, 418 U. S. 506, 515-16
(1974).
The Framers considered the jury trial to be “the
heart and lungs of liberty” and took great pains to ensure that the assault on that right that took place during British rule would “not happen again.” Erlinger v.
United States, 602 U. S. 821, 829 (2024) (internal quotation marks omitted). The Framers understood,
6
however, that “the jury right could be lost not only by
gross denial, but by erosion.” Jones v. United States,
526 U. S. 227, 247-48 (1999); Erlinger, 602 U. S. at 844,
n. 5 (2024).
That fear has come to pass. Today, a vanishingly
small percentage of criminal defendants exercise their
right to a jury trial. Lafler v. Cooper, 566 U. S. 156,
170 (2012) (noting that 97% and 94% of federal and
state convictions, respectively, result from guilty
pleas). 2 Thus, in the vast majority of cases, a criminal
defendant’s fate is not determined by a jury of his
peers, as the Framers intended, but by “horse trading
between prosecutor and defense counsel.” Missouri v.
Frye, 566 U. S. 134, 144 (2012) (internal quotation
marks omitted; cleaned up). For nearly a century after the founding, plea bargaining was rare at best.
Now, however, it is not merely “some adjunct to the
criminal justice system; it is the criminal justice system.” Ibid. As one scholar put it: “Our criminal justice system is a system of pleas. Few who know it well
think that it is working.” Andrew Manuel Crespo, The
Hidden Law of Plea Bargaining, 118 Colum. L. Rev.
1304, 1388 (2018).
The primary culprit behind the disappearance of
the criminal jury trial is the so-called trial penalty,
which results from the often chasmic disparity between the sentence a defendant is offered in exchange
for a plea and the sentence a defendant risks if he or
she goes to trial and loses. See generally The Trial
Penalty. Defendants are often presented with a
2 Those numbers have not meaningfully changed in the last 14
years. See U. S. S. C. 2024 Sourcebook - Table 11, Guilty Pleas
and Trials in Each Circuit and District.
7
Hobson’s choice: plead guilty and guarantee a lighter
sentence or force the government to its proof at trial
and risk additional years, or even decades, of incarceration. Faced with those options—which are often presented by an overworked defense attorney, before he
or she has had the opportunity to investigate the
charges—many defendants make a “rational choice”
to plead guilty to crimes they did not commit. American Bar Association, Plea Bargain Task Force Report
at 17 (Feb 2023); Jed S. Rakoff, Why Do Innocent People Plead Guilty, N.Y. Rev. of Books, Nov. 20, 2014.
To be sure, some degree of coercion in the plea-bargaining process is inevitable; and this Court has
blessed some prosecutorial practices that effectively
penalize defendants who insist on trial. See, e.g., Bordenkircher v. Hayes, 434 U. S. 357 (1978) (permitting
prosecutor to threaten to bring additional charges if
the defendant rebuffed plea offer). But allowing
courts to dramatically increase a defendant’s sentence
based on judge-found facts gives prosecutors a
uniquely powerful weapon with which to bludgeon defendants into pleading guilty.
B. Permitting Courts to Use Uncharged,
Dismissed, and Acquitted Conduct to
Increase the Defendant’s Authorized
Punishment Dramatically Magnifies
the Trial Penalty
1. To understand why the existing regime supercharges the trial penalty, one must begin with the
magnitude of the penalty prosecutors can credibly
threaten.
According to the uniform view among the circuits,
the Sixth Amendment and Due Process Clause permit
8
a court to enhance a sentence based on uncharged,
dismissed, and acquitted conduct so long as the final
sentence remains within the range authorized by the
offense of conviction. See, e.g., United States v. Lucas,
101 F. 4th 1158, 1163 (9th Cir. 2024); United States v.
Grier, 475 F. 3d 556, 573 (3d Cir. 2007) (Rendell, J.,
concurring). But for most defendants, that is cold
comfort since the statutory ranges attached to many
commonly charged crimes span decades. See, e.g., 21
U. S. C. § 841(b)(1)(A) (10 years to life for certain drug
offenses); 18 U.S.C. § 1014 (30-year maximum for false
statement made in loan applications); 18 U.S.C.
§§ 1341, 1343 (20-year maximum for mail and wire
fraud; 30-year maximum if the offense affects a financial institution); 18 U.S.C. § 1344 (30-year maximum
for bank fraud); 18 U.S.C. § 1348 (25-year maximum
for securities fraud); 18 U.S.C. § 1519 (20-year maximum for obstruction of federal investigations).
Moreover, not only are courts permitted to consider
uncharged, dismissed, and acquitted conduct when
fashioning a sentence, they are required to do so. Section 1B1.3’s “relevant conduct” provision broadly directs sentencing courts to consider, among other
things, “all acts and omissions” committed during, in
preparation for, or in the course of attempting to avoid
detection for the offense of conviction, U. S. S. G.
§ 1B1.3(a)(1); acts undertaken as part of the same
“course of conduct,” id. § 1B1.3(a)(2); “all harm” resulting from those acts and omissions, id. § 1B1.3(a)(3);
and all harm that was the object of those acts and
omissions. Ibid.; see generally United States v. Watts,
519 U. S. 148, 152–53 (1997). And while courts are no
longer permitted to treat acquitted conduct as “relevant conduct” for purposes of calculating the
9
Guidelines range, see U. S. S. G. § 1B1.3(c), they must
consider such conduct when evaluating the § 3553(a)
factors and deciding whether a variance is appropriate. United States v. Texidor, 164 F. 4th 248 (3d Cir.
2026); United States v. Ware, 141 F. 4th 970, 974 n. 2
(8th Cir. 2025); U. S. S. G. § 1B1.4 (“In determining the
sentence to impose . . . the court may consider, without
limitation, any information concerning the . . . conduct of the defendant, unless otherwise prohibited by
law.”) (emphasis added); see also United States v.
Ibanga, 271 F. App’x 298 (4th Cir. 2008) (vacating sentence where trial court “applied a standard that would
categorically exclude consideration of acquitted conduct in every case”).
The breadth of the “relevant conduct” rule, coupled
with sprawling statutory sentencing ranges, gives
prosecutors the power to threaten defendants with
years- or decades-long trial penalties based on uncharged or dismissed conduct. For example, the government might charge a low-level drug offense under
21 U. S. C. § 841(b)(1)(C) whose Guidelines range without enhancements would be 0 to 6 months, see, e.g.,
U. S. S. G. §§ 2D1.1(c)(17), 5A, but then argue at sentencing for a Guidelines range of 240 months (the statutory maximum) based on an uncharged murder. Or
the government might charge a homebuyer with lying
about their primary residence on a mortgage application in violation of 18 U. S. C. § 1014—an offense which,
assuming no loss to the bank, 3 would yield a Guidelines range of 0 to 6 months, see U.S.S.G.
3 Most federal fraud statutes do not have a monetary loss ele-
ment or threshold. See Nijhawan v. Holder, 557 U. S. 29, 39
(2009).
10
§§ 2B1.1(a)(1), 5A—and then seek the 30-year statutory maximum by establishing at sentencing that the
defendant used the home purchase to launder money
from an uncharged Ponzi scheme. 4 Or prosecutors
might charge a defendant under 18 U. S. C. § 1519 for
destroying a single email—an offense which, without
enhancements, would yield a Guidelines range of 15
to 21 months, see U. S. S. G. §§ 2J1.2(a), 5A—and then
persuade the court to increase the Guidelines range to
240 (the statutory maximum) months on the theory
that the defendant was concealing his role in an uncharged securities-fraud scheme. 5
Prosecutors may deploy acquitted conduct to similar effect. They can charge a defendant with unlawful
firearm possession, see 18 U. S. C. §§ 922(g), 924(a)(8)
(15-year maximum) and murder, and then, even if the
jury acquits on the murder charge, ask the sentencing
court to impose the 15-year statutory maximum under
§ 3553(a) based on the very homicide the jury refused
4 The court could arrive at a Guidelines range of 360 months by
adding the following: 7 levels for the base offense and 22 levels
for over $25 million in losses, U. S. S. G. § 2B1.1(b)(1)(L), 4 levels
for playing a leadership role in the Ponzi scheme, id. § 3B1.1(a),
4 levels for the number of victims, id. § 2B1.1(b)(2)(B), 4 levels for
vulnerable victims, id. § 3A1.1(b)(1), (b)(2), and 2 levels for sophisticated means. Id. § 2B1.1(b)(10)(C). The Guidelines range
for the total offense level, 43, is life, which is capped at the 30year statutory maximum for a § 1014 offense.
5 The court could arrive at this range if it assessed 30 levels under the accessory-after-the-fact provision, U. S. S. G. §§ 2J1.2(c),
2X3.1(a)(3), 4 levels for playing a leadership role, id. § 3B1.1(a),
2 levels for abuse of a position of trust or use of a special skill, id.
§ 3B1.3, and 4 levels for vulnerable victims. Id. § 3A1.1(b)(1),
(b)(2). The resulting Guidelines range of 292 to 365 months
would then be capped at the 20-year statutory maximum.
11
to attribute to the defendant. See Blakely v. Washington, 542 U. S. 296, 306 (2004) (noting the absurdity of
a rule that would allow a judge to “sentence a man for
committing murder even if the jury convicted him only
of illegally possessing the firearm used to commit it—
or of making an illegal lane change while fleeing the
death scene.”).
2. The magnitude of the potential trial penalty is
only half the story. Defendants deciding whether to
insist on a jury trial must consider not only the severity of the threatened penalty, but the likelihood that
the government can make good on the threat. Given
the near-total absence of procedural protections at
sentencing, that likelihood is often intolerably high.
At trial, the government must persuade a unanimous jury of the defendant’s peers—selected through
procedures designed to minimize bias, see J.E.B. v. Alabama ex rel. T.B., 511 U. S. 127 (1994)—that the defendant committed every element of the offense beyond a reasonable doubt. Cage v. Louisiana, 498 U. S.
39 (1990). And it must do so within a dense framework of procedural protections, including the Confrontation Clause, the Federal Rules of Evidence, and the
discovery obligations imposed by Fed. R. Crim. P. 16.
Those protections largely disappear at sentencing—
and with them the safeguards that guard against erroneous deprivations of liberty. This Court has described the requirement of proof beyond a reasonable
doubt as the “prime instrument for reducing the risk
of convictions resting on factual error.” In re Winship,
397 U. S. 358, 363 (1970). Yet, at sentencing, that protection gives way to a preponderance-of-the-evidence
standard, under which the government and the defendant “share the risk of error in roughly equal
12
fashion.” Addington v. Texas, 441 U. S. 418, 423
(1979). Thus, to increase the length of incarceration,
the court need only find that the relevant facts are
“more likely than not” true. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U. S. 308, 329 (2007). And
that remains the case even when the facts amount to
entirely freestanding offenses, United States v. Faust,
456 F. 3d 1342, 1352 (11th Cir. 2006) (Barkett, J., specially concurring), and even where the finding has “an
extremely disproportionate effect on the sentence.”
United States v. Lucas, 101 F. 4th 1158, 1162 (9th Cir.
2024); United States v. Fisher, 502 F. 3d 293 (3d Cir.
2007) (overruling prior precedent requiring clear-andconvincing evidence to impose a 360-month sentence
on a defendant whose Guidelines range was 27 to 33
months).
Other safeguards fall away at sentencing. The Confrontation Clause—which this Court has described as
“the greatest legal engine ever invented for the discovery of truth,” California v. Green, 399 U. S. 149, 158
(1970) (internal quotation marks omitted)—does not
apply. See, e.g., United States v. Robinson, 482 F. 3d
244, 246 (3d Cir. 2007). Nor do the Federal Rules of
Evidence. Fed. R. Evid. 1101(d)(3). Indeed, federal law
expressly provides that “[n]o limitation . . . be placed
on the information concerning the background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and
consider for the purpose of imposing an appropriate
sentence,” 18 U. S. C. § 3661—a dictate that has “led
the courts and the rules’ drafters to favor the completeness of information presented at sentencing over
its accuracy.” United States v. Hamad, 495 F. 3d 241,
246 (6th Cir. 2007).
13
Instead, sentencing courts may consider virtually
any relevant information so long as it has “some minimal indicium of reliability.” United States v. Galvan,
949 F. 2d 777, 784 (5th Cir. 1991) (emphasis added);
United States v. Robinson, 482 F.3d 244, 246 (3d Cir.
2007). Courts have repeatedly described this standard as a “low hurdle.” United States v. Cook, 550 F. 3d
1292, 1296 (10th Cir. 2008); United States v. Greene,
71 F. 3d 232, 235 (6th Cir. 1995). And because district
courts’ reliability determinations are reviewed only
for clear error, they are rarely overturned on appeal.
United States v. Brewster, 116 F. 4th 1051, 1060 (9th
Cir. 2024); United States v. Grier, 475 F. 3d 556, 569
(3d Cir. 2007).
As a result, courts may drastically increase a defendant’s sentence based on evidence that would be
plainly inadmissible at trial, including evidence in the
form of uncorroborated and double hearsay, unauthenticated evidence, and statements from unidentified confidential informants. United States v. Wise,
976 F. 2d 393, 402 (8th Cir. 1992); United States v.
Shackelford, 462 F. 3d 794, 795 (8th Cir. 2006);
United States v. Borjas, 402 F. App'x 21, 22 (5th Cir.
2010); United States v. Armstrong, 920 F. 3d 395, 398
(6th Cir. 2019). As the Seventh Circuit has explained,
a sentencing court is even “entitled to credit testimony
that is totally uncorroborated and comes from an admitted liar, convicted felon, [or a] large scale drugdealing, paid government informant.” United States
v. Berthiaume, 233 F. 3d 1000, 1003 (7th Cir. 2000). A
sentencing court may likewise consider evidence that
would otherwise fail an inquiry under Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (1993). See
United States v. Hogue, 998 F. 3d 745, 752 (7th Cir.
14
2021); see generally Maneka Sinha, Junk Science at
Sentencing, 89 Geo. Wash. L. Rev. 52 (2021) (explaining how the inapplicability of Rule 702 leads to the
consideration of unreliable scientific evidence at sentencing).
To make matters worse, the law simultaneously
saddles defendants with the burden of furnishing evidence that the government or probation office’s sentencing evidence is unreliable, see, e.g., United States
v. Mays, 593 F. 3d 603, 608 (7th Cir. 2010), but sharply
limits defendants’ ability to obtain the materials they
need to make that showing. Fed. R. Crim. P. 16’s guarantee that a defendant may “inspect and copy” items
“material to preparing the defense” does not extend to
information sought solely for sentencing. United
States v. Pirosko, 787 F. 3d 358, 368 (6th Cir. 2015);
United States v. Neal, 611 F. 3d 399, 401 (7th Cir.
2010). And although Rule 32, 18 U. S. C. § 3552, and
the Guidelines require disclosure of the Presentence
Report, they do not require automatic disclosure of the
materials underlying the Report’s assertions. 6 Indeed,
“[n]owhere in the legal system are litigants forced to
face such potentially severe consequences as a criminal defendant at sentencing without any right to disclosure of the information and evidence against them.”
Richard Smith-Monahan, Unfinished Business: The
Changes Necessary to Make Guidelines Sentencing
Fair, 12 Fed. Sent. R. 219 (Jan/Feb 2000).
3. Allowing courts to impose dramatic sentencing
increases based on judge-found facts under lax
6 The Jencks Act applies at sentencing, but only requires the dis-
closure of statements by testifying witnesses after the witness
has testified. 18 U. S. C. § 3500(b).
15
procedures gives prosecutors extraordinary leverage
in plea negotiations. That is because prosecutors often control which incriminating facts reach the sentencing court in the first place—and with that gatekeeping power comes the ability to withhold, narrow,
or stipulate away sentence-determinative facts in exchange for an agreement to plead guilty.
In theory, sentencing courts are supposed to possess
all information relevant to the sentence. Presentence
Reports are meant to reflect an independent inquiry
into the defendant’s conduct and background, and
prosecutors are expected to disclose facts bearing on
the proper sentence. The Trial Penalty at 26;
Fed. R. Crim. P. 32(d)(2)(G) (requiring the Presentence
Report to include “any other information that the
court requires, including information relevant to the
factors under 18 U.S.C. § 3553(a)”). In practice, however, prosecutors and defendants routinely haggle
during plea negotiations over which facts will be
transmitted to the probation office or presented before
the court. See, e.g., Melissa Hamilton, McSentencing:
Mass Federal Sentencing and the Law of Unintended
Consequences, 35 Cardozo L. Rev. 2199, 2235-36 (2014)
(noting that the Sentencing Guidelines have
“spawned a whole different breed of fact bargaining”
by allowing courts to consider “aggravating or mitigating circumstances—i.e., facts—that prosecutors can
trade in the plea bargaining process”); Sonja B. Starr
& M. Marit Rehavi, Mandatory Sentencing and Racial
Disparity: Assessing the Role of Prosecutors and the
Effects of Booker, 123 Yale L.J. 2, 12 (2013) (“[E]ven
though DOJ has long directed prosecutors not to bargain over these facts, many studies have documented
the persistence of fact-bargaining.”)
16
Thus, prosecutors might induce a plea by promising
not to alert the court to evidence of criminal conduct
that would elevate the defendant’s Guidelines range
or adversely implicate the § 3553(a) factors, see Russell M. Gold, Carissa Byrne Hessick, F. Andrew
Hessick, Civilizing Criminal Settlements, 97 B.U.L.
Rev. 1607, 1618 (2017), or by promising not to share
damaging information with the probation officer preparing the defendant’s Presentence Report. And even
if it is not possible to conceal a fact from a court, prosecutors may induce a guilty plea by offering to include
a stipulation in the plea agreement as to loss amount,
drug quantity, or other enhancement; or by promising
to recommend a particular sentence or agreeing that
a particular sentencing factor does not apply.
Fed. R. Crim. P. 11(c)(1)(B) & (C); see also Mary Patrice
Brown & Steven E. Bunnell, Negotiating Justice:
Prosecutorial Perspectives on Federal Plea Bargaining
in the District of Columbia, 43 Am. Crim. L. Rev. 1063
(2006) (noting that both judges and the probation office tend to defer to party stipulations).
4. To see how these dynamics play out in practice,
consider the following examples.
Use of Uncharged Conduct. Imagine that prosecutors charge two co-defendants, A and B, with one
count of mortgage fraud resulting in $15,000 in losses.
During plea negotiations, prosecutors intimate that
they possess information that A and B participated in
a broader mortgage fraud conspiracy that caused $70
million in losses. Knowing that the information is not
to sufficient obtain a conviction, prosecutors make the
following offer: In exchange for a quick guilty plea, the
government will stipulate that the total loss amount
for the defendants’ fraudulent conduct totaled $15,000.
17
If, however, defendants go to trial and are convicted,
prosecutors tell A and B that they will ask the court
to consider evidence of the uncharged fraud conspiracy as “relevant conduct” when calculating the Guidelines.
Eager to lock in the lower loss amount and secure a
three-level reduction for acceptance of responsibility,
A agrees to plead guilty. Based on the government’s
stipulations, his adjusted offense level would be 6, see
U. S. S. G. §§ 2B1.1(a)(1) (base level 7), (b)(1)(B) (2 levels for $15,000 loss), 3E1.1 (3-level reduction for acceptance of responsibility), and assuming no other adjustments, his Guidelines range would be 0 to 6
months imprisonment. See id. § 5A.
B, however, insists that she is innocent of any
wrongdoing. She and her lawyer do the following calculation: If B goes to trial and loses, she will forfeit the
3-level reduction for acceptance of responsibility.
U. S. S. G. § 3E1.1, cmt. n. 2. But if the court credited
only the government’s evidence that her conduct
caused $15,000 in losses, her Guidelines range would
be 4 to 10 months. See id. §§ 2B1.1(a)(1) (base level 7),
(b)(1)(B) (2 levels for $15,000 loss), 5A. Under these
circumstances, the “penalty” for exercising her trial
right is four months—a risk that B is willing to take
to prove her innocence. But if she gets convicted and
the sentencing court finds by a preponderance that B
participated in the broader mortgage fraud conspiracy,
her Guidelines range would balloon from 4 to 10
months to 108 to 135 months. See U. S. S. G.
§§ 2B1.1(a)(1) (base level 7), 2B1.1(b)(1)(M) (24 points
for loss in excess of $65 million). In other words, the
trial penalty is now approximately a decade imprisonment.
18
Few defendants in B’s shoes would be willing to risk
ten years of incarceration when the alternative is a
guilty plea with a likely probationary sentence; and
no responsible defense attorney would advise B to go
to trial absent complete certitude that they could secure a full acquittal. The rational decision under
these circumstances is to plead guilty—even if B is innocent.
Use of Acquitted Conduct. The same coercive dynamic is present when courts are permitted to use acquitted conduct to increase a defendant’s sentence.
Suppose this time that prosecutors charge A and B
with one count of mortgage fraud that caused no loss
and a second, far weaker count of conspiracy to commit mortgage fraud that caused $70 million in losses.
The government makes the following offer: If the defendant pleads guilty to both counts, the government
will stipulate that the defendants caused only $15,000
in loss and will advocate for a Guidelines range tethered to that amount—namely, 0 to 6 months.
A accepts the deal. The government makes good on
its promise, and A receives probation. B goes to trial
where she is convicted on the minor mortgage-fraud
count, but acquitted on the conspiracy count. The acquittal, however, provides cold comfort. At sentencing,
the court finds by a preponderance of the evidence
that B played an instrumental role in the broader conspiracy and that the scheme caused investors $70 million in losses. While the court cannot use the acquitted conduct to calculate the Guidelines range, see
U. S. S. G. § 1B1.3(c), it can rely on that conduct to impose a substantial upward variance under § 3553(a).
See, e.g., United States v. Ware, 141 F. 4th 970 (8th Cir.
2025) (varying upward to 144 months based on
19
acquitted conduct where the Guidelines range was 84
to 105 months).
This is the dilemma that every defendant facing
multiple charges of varying strength must contend
with when choosing whether to exercise his or her jury
trial right. “[A] hard-fought partial victory . . . can be
rendered practically meaningless” if the court uses
that acquitted conduct to impose a “drastically lengthened sentence”—something which is entirely permissible under the law of the circuits. United States v.
Bell, 808 F. 3d 926, 932 (D.C. Cir. 2015) (Millet, J.,
concurring in the denial of rehearing en banc). In this
context, a defendant faces “all the risks of conviction,
with no practical upside to acquittal unless they run
the board and are absolved of all charges.” Ibid. (emphasis in original). Here, too, the rational course will
often be to plead guilty to criminal conduct the defendant did not commit and which the government could
not prove at trial, simply to secure prosecutors’ commitment not to invoke that misconduct at sentencing.
Use of Dismissed Conduct. Imagine prosecutors
bring the same two charges for mortgage fraud and
conspiracy to commit mortgage fraud. This time, however, the conspiracy charge has a variety of defects: it
falls outside the statute of limitations, venue is improper, the indictment fails to allege an essential element, and the government’s principal evidence was
obtained through an unlawful search and/or in violation of the defendant’s rights under Miranda v. Arizona, 384 U. S. 436 (1966).
A pleads guilty and is sentenced to probation. B
takes a different course. She secures an order suppressing the unlawfully obtained evidence supporting
the conspiracy charge, then successfully moves to
20
dismiss the charge based on the aforementioned legal
defects. She then goes to trial on the lesser mortgage
fraud count and loses. As with the acquittal, the dismissal of the conspiracy charge quickly turns into a
pyrrhic victory. None of the defects that prevented
the government from trying the conspiracy charges
before a jury prevent prosecutors from presenting evidence of a conspiracy to the sentencing court. See,
e.g., United States v. Behr, 93 F. 3d 764, 766 (11th Cir.
1996) (“relevant conduct” includes conduct outside the
statute of limitations); United States v. Ghanem, 143
F. 4th 1114 (9th Cir. 2025) (sentencing court may consider conduct without regard for venue considerations); United States v. Seymour, 94 F. 4th 679, 684
n. 1 (7th Cir. 2024) (exclusionary rule does not apply
to Miranda violations at sentencing); United States v.
Acosta, 303 F. 3d 78, 84 (1st Cir. 2002) (noting that “all
the courts that have addressed this issue have held
that there is no blanket prohibition on the consideration of illegally seized evidence for the purposes of
making the findings required under the Guidelines”)
(internal quotation marks omitted). As with the first
example, the court credits the government’s allegations that she participated in the mortgage fraud conspiracy and sentences her to 108 months.
This example, though stylized, illustrates a broader
point: The ability to enhance a sentence based on dismissed conduct means that defendants often find
themselves in a Kafkaesque position in which it is better to plead guilty to a defective charge than secure its
dismissal.
21
C. Empowering Prosecutors to Seek
Dramatic Enhancements Based on
Uncharged, Dismissed, and Acquitted
Conduct Corrupts the Criminal
Justice System
The downstream consequences of allowing prosecutors to balloon sentences based on judge-found facts
are substantial. It rewards prosecutorial gamesmanship. In some cases, the rule encourages prosecutors
to press charges that are factually weak or legally infirm by largely eliminating the downside. If the defendant capitulates to the aggressive charging tactics,
the government wins; if the defendant goes to trial
and is convicted, the government wins; and even if the
defendant succeeds in getting a charge dismissed or
secures a partial acquittal, the government can still
eke out a win by persuading the court, under the forgiving preponderance standard, to credit the very allegations it could not prove at trial. In other cases,
the rule creates an incentive to dispense with charging altogether and unveil the allegation for the first
time at sentencing, where the defendant has scant
discovery rights, no Confrontation Clause entitlement,
and far fewer tools to contest the accusation.
The broader institutional consequences are no less
serious. When defendants are coerced into pleading
guilty, prosecutors are insulated from having their
charging decisions tested in open court, removing a
critical check on government overreach and inviting
prosecutorial sloppiness. The Trial Penalty at 8-9.
Defense attorneys, stripped of the opportunity to litigate, lose the skills that adversarial proceedings demand. Id. at 9. Judges, who in the federal system
22
play no role in the plea negotiations, are reduced to
rubber-stamping plea agreements rather than deciding legal and evidentiary issues or policing prosecutorial excess. See Rakoff, Why Do Innocent People Plead
Guilty, supra at 7. The public loses its traditional role
as a check on the criminal justice system through jury
service.
Most troubling of all, the trial penalty induces innocent defendants to plead guilty rather than run the
risk that prosecutors will use judge-found facts to add
years or decades to their punishment. Ibid. (citing
data that around 10% of exonerations since 1989 involved false guilty pleas).
A final consequence of the trial penalty is that it obscures its frequency. Threats to seek sentencing enhancements based on uncharged, dismissed, or acquitted conduct rarely appear in any public record, because they usually achieve their purpose before trial
and sentencing ever occur. The practice becomes visible only in the exceptional case where a defendant resists and brings a trial penalty claim. For every such
case, there are untold others in which defendants quietly surrender their jury-trial right in exchange for
the government’s agreement not to pursue enhancement that prosecutors did not prove or could not prove
at trial. That is not a marginal feature of the modern
system. It is a profound distortion of it. This Court
should grant certiorari and put an end to that practice.
23
CONCLUSION
For the foregoing reasons, the petition for a writ of
certiorari should be granted.
Joshua L. Dratel
LAW OFFICES OF
DRATEL AND LEWIS
29 Broadway, Ste 1412
New York, NY 10006
(212) 732-0707
jdratel@dratellewis.com
March 20, 2026
Joseph Aaron Pace
Counsel of Record
J. PACE LAW, PLLC
30 Wall St., 8th Fl.
New York, NY 10005
(646) 300-4304
jpace@jpacelaw.com
Attorneys for
Amicus Curiae
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.