Sentences Based on Acquitted Conduct: Will the Court Try Again?

Note: After this post was written, the Court rescheduled the cases presenting the issue, likely for distribution at the next conference on May 18, 2023.

On Thursday, May 11, 2023 the Supreme Court will consider several petitions, presenting questions about whether and how federal judges can consider criminal conduct of which the defendant was acquitted in imposing sentence on other charges resulting in a conviction. It may not be exactly right to say that this issue has been “percolating” for a long time; the federal courts of appeals have treated it as having been resolved by the Supreme Court’s per curiam opinion in United States v. Watts, issued in January 1997. Watts summarily reversed two decisions by the Ninth Circuit that had precluded judges from considering conduct underlying acquitted charges when imposing a sentence.1 It might be fairer to describe the law in the Circuits as having congealed around a decision that the Court issued without full briefing or oral argument and that is no longer valid on its own terms.

A lot has changed since Watts. Most importantly, in United States v. Booker, the Court held that a judge could not increase the defendant’s sentence “based on additional facts that the sentencing judge found by a preponderance of the evidence.”2 In an opinion by Justice Stevens, who had dissented in Watts, the Booker majority rejected the government’s contention that its decision was foreclosed by precedent, including Watts. As to Watts, the Court dropped a footnote: “Watts, in particular, presented a very narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument. It is unsurprising that we failed to consider fully the issues presented to us in these cases.”3

Central to the decision in Booker was the Court’s recognition that findings of “relevant conduct” under the mandatory guidelines operated differently from a sentencing judge’s discretionary consideration of evidence, and more like customized maximum and minimum sentences. Justice Stevens acknowledged that the Court has “never doubted the authority of a judge to exercise broad discretion in imposing a sentence within a statutory range,”4 citing Williams v. New York, one of the cases the Court had relied on in Watts as a basis for summary reversal.5 Unlike the use of “relevant conduct” under the mandatory guidelines to change the sentencing range, “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”6 

By contrast, in a series of cases leading up to Booker, the Court had held that juries must find beyond a reasonable doubt the facts that determine the sentencing range—not judges by a preponderance of the evidence. Those decisions contradict the Court’s reliance in Watts on the proposition that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.”7 The difference between finding a fact to be proven for purposes of changing the sentencing range and considering information for purposes of selecting a sentence within a defined range also means that the Court was wrong in Watts to rely on 18 U.S.C. § 3661 as permitting the enhancement of a sentence based on a judicial finding that the defendant committed conduct of which he had been acquitted.8 Prohibiting a court from increasing the sentencing range based on acquitted conduct is not a bar to the presentation or judicial consideration of “information concerning the background, character and conduct” of the defendant—only to using such information in the manner of a fact found by a jury.

Once it is established that facts determining the sentencing range are for the jury and proof beyond a reasonable doubt, it seems obvious that ordinary principles of double jeopardy would preclude a judge from increasing a mandatory sentencing range based on acquitted conduct. The judge would, in effect, be placing the defendant in jeopardy of punishment at sentencing for the same offense after a jury found him not guilty. Moreover, it should also be obvious that 18 U.S.C. § 3661 does not prevent the Sentencing Commission from adopting a guideline barring or limiting the use of acquitted conduct to increase a sentencing range, even if the government can present the information and the judge can consider it in other ways. Watts is just incompatible with Booker.

The petitions now before the Court present the trickier question about using acquitted conduct to increase a sentence under the post-Booker guidelines that determine the presumptively reasonable sentence, but are no longer mandatory. In Jones v. United States, Justice Scalia, joined by Justices Thomas and Ginsburg, dissented from denial of review of a sentence “many times longer than those the Guidelines would otherwise have recommended,” based on the judge’s finding, by a preponderance of the evidence, that the defendants were guilty of engaging in a conspiracy to distribute drugs despite a jury’s acquittal.9 Because the change in the advisory guideline range produced a sentence that would otherwise be substantively unreasonable, the Jones dissenters urged that “any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence —is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.”10 

Whatever the right answer is to the acquitted conduct question after Booker, it can’t be controlled by Watts. But the Court has continued to deny review of acquitted conduct cases since Jones in 2014, and the courts of appeals have continued to treat Watts as dispositive. The list of denials, even back to 2019, is long.11 And “every federal court of appeals with criminal jurisdiction has recognized, after Booker, that a district court may consider acquitted conduct for sentencing purposes.”12

In January of this year, the Sentencing Commission took up consideration of guideline amendments that would limit consideration of acquitted conduct.13 The Supreme Court held seven cases presenting acquitted conduct issues, presumably to see if the Commission would eliminate the need for the Court to consider the issue. However, a supplemental brief filed in one of the cases (McClinton) describes the government as vigorously opposed even to restrictions on the use of acquitted conduct (in fact, even to the Commission’s authority to adopt such an amendment) and likely to prevent adoption of such an amendment as an ex officio albeit nonvoting member of the Sentencing Commission.14 And on April 6, the government reported that the Commission had not included any amendments to the guidelines addressing acquitted conduct in its submission to Congress and had put the issue off at least for a year.15

Now that it knows the Sentencing Commission is unlikely to moot the issue, the Court is likely to take one or more of the cases it has been holding to be heard in the October 2023 Term. It may take a conference or two for the Court to decide which of the cases best presents the issue, or the Court may hedge its bets by taking more than one case. The question is trickier than it would be for mandatory guidelines, but its resolution seems overdue.

1 United States v. Watts, 519 U.S. 148 (1997). The Court decided Watts on the petition-stage filings and without oral argument.
2 United States v. Booker, 543 U.S. 220, 226 (2005).
3 Id. at 240 n.4 (citation to the dissent omitted).
4 Id. at 233.
5 Id. (citing 337 U.S. 241, 246 (1949)). Watts noted that Williams allowed a sentencing judge to consider information about crimes of which the defendant had not been convicted (but had not been acquitted). 519 U.S. at 151-52.
6 543 U.S. at 233.
7 519 U.S. at 156 (quoting Dowling v. United States, 493 U. S. 342, 349 (1990)).
8 The statute provides: “No limitation shall 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.” See 519 U.S. at 151.
9 574 U.S. 978, 135 S. Ct. 8 (2014).
10 135 S. Ct. at 8.  
11 See McClinton v. United States, No. 21-1557, Brief for U.S. in Opposition to Petition for Writ of Certiorari at 14-15 (Oct. 28, 2022).
12 Id. at 11-12.
13 See Letter from Elizabeth B. Prelogar, Solicitor General, U.S. Dep’t of Just., to the Hon. Scott S. Harris, Clerk, Supreme Court of the United States, Re: McClinton v. United States, No. 21-1557 (Jan. 18, 2023).
14 Supp. Br. for Pet., No. 21-1557 at 2-4 (Mar. 7, 2023).
15 See Letter from Elizabeth B. Prelogar, Solicitor General, U.S. Dep’t of Just., to the Hon. Scott S. Harris, Clerk, Supreme Court of the United States, Re: McClinton v. United States, No. 21-1557 (April 6, 2023).

Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.

David A. Reiser

David A. Reiser
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Bryan Reines

Bryan Reines
Email | +1 202.778.1846

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Information provided on InsightZS should not be considered legal advice and expressed views are those of the authors alone. Readers should seek specific legal guidance before acting in any particular circumstance.