In a criminal trial, the jury is king. It is the sole arbiter of the facts, and jurors alone decide whether the government has proven its case against a defendant beyond a reasonable doubt. But when it comes to sentencing, the judge wears the crown. Take the case of Dayonta McClinton. McClinton was charged with robbing a drugstore and then robbing and killing his co-defendant following a dispute over the proceeds. McClinton proceeded to trial and was convicted of the drug store robbery but acquitted of the robbery and murder of his co-defendant. McClinton’s advisory guidelines range, based solely on the drugstore robbery, was about four to six years. Despite the jury’s acquittal on the murder charge, the government nevertheless sought a 30-year sentence on the ground that the murder was “relevant conduct” that the judge should consider in calculating McClinton’s guidelines range. The court ultimately agreed and imposed a sentence of 20 years’ imprisonment—almost four times higher than McClinton would have faced if only the drugstore robbery charges were considered. How can a judge punish a defendant for a crime as if the jury never acquitted them? It is a question that has weighed on the minds of defense lawyers and commentators for years, and it is one that the U.S. Sentencing Commission is seeking to put to rest once and for all.

The Current Regime

The U.S. Sentencing Guidelines adopt a modified “real offense” approach to sentencing. Unlike a “charge offense” sentencing regime that focuses only on the crime(s) for which a defendant was convicted, the real offense approach looks to a broader range of conduct. Defendants are sentenced based on the conduct they engaged in, regardless of whether the government sought and obtained a conviction for all that conduct. The concept is enshrined in U.S.S.G. Section 1B1.3, which provides that a judge may consider a wide range of “relevant conduct” in calculating a defendant’s advisory guidelines range.

Although Section 1B1.3 does not explicitly reference acquitted conduct, it has been understood for years that acquitted conduct is one type of relevant conduct that a judge may use to increase a defendant’s base offense level under the guidelines. The practice has even been blessed by the U.S. Supreme Court, which previously rejected a constitutional challenge to the practice of acquitted conduct sentencing inUnited States v. Watts, 519 U.S. 148 (1997). Under Watts and Section 1B1.3, a sentencing judge generally may use acquitted conduct to enhance a defendant’s sentence, so long as the judge finds by a preponderance of the evidence that the conduct at issue did in fact occur (and so long as the enhancement does not increase the defendant’s statutory minimum or maximum sentence).

The Proposed Elimination of Acquitted Conduct Sentencing

The days of acquitted conduct sentencing, however, may be numbered. The U.S. Sentencing Commission recently held a public hearing on whether to curtail the use of acquitted conduct sentencing. The commission’s proposed amendment would revise Section 1B1.3 to prohibit the use of acquitted conduct as a basis for increasing a defendant’s offense level, unless the conduct was admitted by the defendant during a guilty plea colloquy or found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the offense of conviction. Not surprisingly, certain groups, including the Department of Justice and the Probation Officers Advisory Group of the Sentencing Commission, are opposed to the proposed amendment. They believe that the amendment would unduly restrict judicial factfinding, create confusion and administrability concerns, result in sentences that fail to account for the full range of a defendant’s conduct, and risk infringing on victim rights. Other groups, including federal public defenders and the National Association of Criminal Defense Lawyers, are steadfastly in favor of the proposed amendment. They argue that the amendment is long overdue and a necessary change to preserve the right to trial by jury, safeguard individual liberty and prevent unwarranted sentencing disparities.

While the battle rages on before the sentencing commission, another skirmish looms before the Supreme Court. McClinton filed a petition for certiorari asking the Supreme Court to reconsider its decision in Watts and outlaw the use of acquitted conduct in sentencing as a matter of constitutional law. Such action from the Supreme Court would bar the practice not only in federal courts, but also in state courts, where the bulk of criminal prosecutions take place. It would also close what McClinton and others see as a potential loophole in the commission’s proposed amendment that would allow sentencing judges to rely on acquitted conduct in other contexts, such as departing upwards in the guidelines or otherwise imposing a sentence under 18 U.S.C. Section 3553(a).

Is Relevant Conduct Next?

If relying on acquitted conduct to enhance a defendant’s sentence is antithetical to a fair sentencing system, could the entire concept of relevant conduct itself be the next domino to fall? Under Section 1B1.3, defendants often have their guidelines ranges enhanced by other types of relevant conduct, including uncharged or dismissed conduct. In some ways, increasing a defendant’s sentence based on uncharged or dismissed conduct seems worse than doing so based on acquitted conduct. At least with acquitted conduct, the conduct was charged and the defendant had the opportunity to rebut it at trial. But in the case of uncharged conduct, the allegations never even made it before a grand jury. Yet, the defendant is forced to challenge those allegations for the first time in front of a sentencing judge, with a much lower burden of proof facing the government.

To many, the sentencing commission’s proposed curtailment of acquitted conduct sentencing is a step in the right direction. But it remains to be seen whether the sentencing commission continues on the path of reform and re-evaluates the entire concept of relevant conduct. There is a certain intuitive appeal to the notion that a defendant should only be punished for conduct that has been admitted, or that a jury has found proven beyond a reasonable doubt. Getting there, however, would require the sentencing commission to move closer to the charge offense system it previously rejected when it drafted the guidelines in the first place. With the recent momentum, there is no time like the present to revive that debate.

Reprinted with permission from the April 5, 2023 issue of The Legal Intelligencer© 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.