Justices Pass On Acquitted Conduct Review — For Now

By Stewart Bishop | June 30, 2023, 10:08 PM EDT ·

The U.S. Supreme Court on Friday declined to take up several cases challenging the practice of acquitted conduct sentencing as the U.S. Sentencing Commission reassesses the controversial practice, but multiple justices made it clear that future high court review may be in the cards.

In statements accompanying the Supreme Court's order denying certiorari, Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch said the cert denial in McClinton v. U.S. and related cases "should not be misinterpreted" and that the use of acquitted conduct to alter the range of the federal sentencing guidelines "raises important questions."

The four justices said they are holding off on taking any action for now in deference to the Sentencing Commission, which in January floated a proposed amendment that would prohibit acquitted conduct sentencing but then said in May it needed more time to consider the matter and will reach a decision next year.

Under the current guidelines, and pursuant to the Supreme Court's 1997 decision in U.S. v. Watts , a verdict of acquittal doesn't prevent a sentencing judge from considering the conduct underlying the acquitted charge, as long as the judge concludes it was proved by a preponderance of the evidence — or, more likely than not — as opposed to a jury's much higher standard of proof beyond a reasonable doubt.

Writing for herself alone, Justice Sotomayor expressed concerns about the implications of acquitted conduct sentencing with respect to the role of the juries, procedural fairness and the public perception that justice is being done.

"If the commission does not act expeditiously or chooses not to act ... this court may need to take up the constitutional issues presented," she said.

Justice Samuel Alito in a concurrence cast doubt on arguments that acquitted conduct sentencing violates a defendant's Sixth Amendment right to a fair trial. But he claimed to have not adopted a firm position on the matter and that he was only outlining countervailing points to those of his colleagues.

Strong evidence exists, Justice Alito said, that when the Sixth Amendment was enacted, the understanding of the jury trial right was not that a defendant's sentence can only be based on facts that a jury has found beyond a reasonable doubt.

Justice Alito indicated that the Supreme Court may need to take up the issue of acquitted conduct sentencing no matter what the Sentencing Commission does, since that body's findings don't apply to state courts, "and therefore the constitutional issue will remain."

Detractors argue acquitted conduct sentencing is unconstitutional, including petitioner Dayonta McClinton, whose case exemplifies how the consideration of acquitted conduct at sentencing can dramatically increase the penalties.

McClinton was convicted over his role in a group robbery of an Indianapolis CVS pharmacy in 2015. The robbery turned deadly, and an alleged accomplice, Malik Perry, was shot at point-blank range in the back of the head, purportedly after refusing to share the proceeds of the heist.

Prosecutors accused McClinton of killing Perry, but a jury only convicted him of robbery and gun charges and acquitted him of robbing and killing Perry. At sentencing, however, the district court judge concluded by a preponderance of the evidence that McClinton was responsible for Perry's murder and sentenced him to approximately 19 years in prison. If not for the use of his acquitted conduct, McClinton would have faced a guideline range of roughly five to six years.

McClinton and other critics argue that acquitted conduct sentencing violates the Sixth Amendment's right to a trial by jury, as it undermines the jury's role as a bulwark between the state and the accused and also violates Fifth Amendment's due process clause, since allowing fact-finding by a preponderance of the evidence standard is in conflict with the jury's higher standard of proof beyond a reasonable doubt.

The U.S. Department of Justice has disagreed and said judges have broad discretion to engage in fact-finding to determine an appropriate sentence within a statutorily authorized range, citing the Supreme Court's prior findings in case including U.S. v. Booker and Watts.

An attorney for McClinton, Elie Salamon of Arnold & Porter Kaye Scholer LLP, told Law360 that they're obviously disappointed in the court's decision to decline review, and that Justice Sotomayor "certainly makes a compelling case for why the issue should be resolved by the court."

"As Justice Alito observed in his concurrence, even if the Sentencing Commission were to act, that would do nothing to end the practice and help defendants in state court criminal cases, which comprise the vast majority of criminal cases in the United States," Salamon said. "And even if the court decides to take up the issue in the future, it will do nothing to help Dayonta and the numerous other defendants whose petitions the court rejected challenging their sentences enhanced based on acquitted conduct."

DOJ representatives did not immediately respond to a request for comment Friday.

Some of the current justices in the past have opined on their dim or at least suspect views of the practice — namely Justices Kavanaugh, Clarence Thomas and Gorsuch.

During his time on the D.C. Circuit, Justice Kavanaugh criticized acquitted conduct sentencing on multiple occasions and referred to the practice as "a dubious infringement of the rights to due process and to a jury trial."

In 2014, Justice Thomas joined in a dissent with then-Justices Antonin Scalia and Ruth Bader Ginsburg to the denial of a cert petition that concerned acquitted conduct sentencing.

"We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment — or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable," the dissent said.

Citing that dissent, less than two months later, then-Tenth Circuit Judge Neil Gorsuch said it's "far from certain" whether the constitution allows a judge to increase or decrease a defendant's sentence based on facts the judge finds without the aid of a jury or the defendant's consent.

The government is represented by Elizabeth Prelogar of the Office of the Solicitor General and Kenneth Polite Jr. and Javier Sinha of the DOJ's Criminal Division.

McClinton is represented by Elie Salamon, John Elwood and Aaron Bowling of Arnold & Porter Kaye Scholer LLP and Karen Oakley of the Law Offices of Karen Oakley LLC.

The case is McClinton v. U.S., case number 21-1557, in the Supreme Court of the United States.

--Editing by Gemma Horowitz.

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