SUMMARY OF ARGUMENT

Trial courts can and should reverse a jury’s guilty verdict when the prosecution fails to adduce sufficient evidence for any rational jury to have reached that decision. And courts can and should vacate guilty verdicts flowing from constitutional violations, in cases where new evidence emerges showing the defendant is actually innocent, and other appropriate cases. Likewise, judge-found facts at sentencing justifying leniency pose no constitutional problem. None of these judicial actions violate the core tenants of our justice system.

But a sentencing judge should not be allowed to functionally overrule a jury’s acquittal of a criminal defendant and punish him for that same acquitted conduct. Yet all too many criminal defendants who were acquitted of more serious criminal charges but convicted on one or more lower charges face judges doing just that. How is this constitutionally dubious sentencing practice possible Put simply, many lower courts have mistakenly overread this Court’s per curiam decision in Watts to permit sentencing judges to do what Apprendi and its progeny later prohibited; namely, find facts that increase the punishment beyond that authorized by the jury’s findings of guilt.

To be sure, at trial, due process requires the prosecution to prove every fact necessary for conviction beyond a reasonable doubt. And if a jury determines the government has not met that high burden with respect to one or more charges, that results in a not-guilty verdict for those charges, even though the jury might reach a guilty verdict on different charges in the same trial.

But when a defendant in these circumstances is sentenced for the charge(s) he or she was convicted of, very different rules apply. At that point, under the federal sentencing regime, it is the trial judge—not the jury—who makes factual findings relevant to determining the Guidelines range and what the defendant’s sentence should be. At sentencing, the preponderance of the evidence standard applies. That standard, which is a far lower bar than the reasonable doubt standard, is met if the judge finds it is more likely than not the conduct occurred. And by statute, “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court . . . may. . . consider for the purpose of imposing an appropriate sentence.” 18 U.S.C. § 3661; see also U.S.S.G. § 1B1.3.

Taken together, this means a trial court can find at sentencing—using a lower standard of proof—that the defendant committed alleged conduct a jury just found the defendant not guilty of, and then rely on these factual findings to legally justify increased punishment. In other words, unless the defendant is found not guilty of all charges, the trial judge can dramatically increase the punishment for the charges the defendant was convicted of based on alleged conduct the defendant was acquitted of. And, given the extremely broad nature of federal sentencing, this allows acquitted conduct to dramatically increase the term of incarceration.

That is exactly what happened here. Based on the charges Mr. McClinton was convicted of, and facts found by the jury, his offense level was 23, and his Guidelines range would have been 57–71 months. But because the district court included the acquitted conduct in calculating Mr. McClinton’s offense level it skyrocketed to level 43 based on the same facts the jury failed to find have been proven, yielding a sentence of 228 months in prison. See Pet. 7–9; App. 3a. The district court sentenced him to 228 months by, in essence, overruling the jury’s decision.

That counterintuitive result is wrong. Acquitted-conduct sentencing flips the presumption of innocence on its head by allowing judges to functionally overrule unanimous jury acquittals based on judge-found facts using the far lower preponderance standard, gutting the Sixth Amendment’s jury-trial right. At a minimum, the Sixth Amendment jury-trial right, coupled with the due process requirement that all facts necessary to legally authorize punishment must be proven beyond a reasonable doubt, should bar judges from using the same alleged conduct a jury acquitted a defendant of to justify dramatically increasing a defendant’s Guidelines range and sentence.

The real-world stakes of this case are high. Acquitted-conduct sentencing contributes to what is known as the “trial penalty” and to the government’s ability to coerce guilty pleas. See generally National Association of Criminal Defense Lawyers, The Trial Penalty: The Sixth Amendment Right to Trial on the Verge of Extinction and How to Save It (2018), https://www.nacdl.org/Document/TrialPenaltySixthAmendmentRighttoTrialNearextinct. This should not be allowed to stand. And this case presents an ideal vehicle for correcting this injustice. See App. 4a–5a (“McClinton’s counsel advocated thoroughly by preserving this issue for Supreme Court review.”).