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Acquitted Conduct Sentencing

How Judges Enhance Sentences by Supplanting ‘Not Guilty’ Verdicts with Private Findings that Defendants ‘Probably Committed’ Acquitted Offenses

by Douglas Ankney

Gregory Bell was indicted on 13 charges. He exercised his right to a jury trial. The jury acquitted Bell of 10 charges and convicted him of just three distribution charges that together added up to only five grams of crack cocaine. Since Bell had no significant criminal history, his Guidelines Sentencing Range (“GSR”) was 51-63 months in prison.

But at sentencing, the judge concluded Bell had probably participated in the acts for which he had been acquitted. The judge then used that conclusion to arrive at a higher GSR and sentenced Bell to 192 months (16 years) in prison.

Perhaps the Queen of Hearts in Alice’s wonderland may demand “acquit first, then punish,” but in America, this very real practice is known as “acquitted conduct sentencing.” This practice is generally defined by the use of acts for which the accused was criminally charged and formally adjudicated “not guilty” as a basis for enhancing the sentence on other charges that person was convicted of. Acquitted conduct sentencing is the standard, approved practice of all federal circuits as well as the state courts of Alaska, Georgia, Illinois, Montana, and Utah. (Until 2019, the state of Michigan also permitted acquitted conduct sentencing. See People v. Beck, 939 N.W.2d (Mich. 2019)).

This article will focus primarily on the federal judicial system and will explore: (1) how the disdainful practice of acquitted conduct sentencing originated and developed; (2) the flawed reasoning put forth to justify the practice; (3) the arguments put forth calling for an end to the pernicious practice; and (4) the efforts at reform.

Origin and Development

In the early part of the 20th century, the prevailing penal philosophy was one that embraced rehabilitation, which was perceived as morally and scientifically superior to retribution in criminal sentencing. In Williams v. New York, 337 U.S. 241 (1949), Justice Black opined that “the punishment should fit the offender and not merely the crime.” The rehabilitative ideal was tied to a specific setting for treatment growing out of developments in clinical psychology. As such, an indeterminate sentencing regime took hold. Each offender’s unique characteristics were taken into account through individualized sentencing.

The judge would impose a sentence range (e.g., from two to 20 years), and the offender’s rehabilitative progress determined the amount of the sentence served before release. The judge’s role was likened to a physician: crime was a “moral disease,” and the cure was entrusted to experts in the criminal justice field, one of which was the judge.

Consistent with this philosophy, judges considered a vast array of facts relevant to the character and conduct of the accused. Justice Black explained that the selection of an appropriate sentence required “possession of the fullest information possible concerning the defendant’s life and characteristics.” Williams. Different standards of proof and evidence evolved so that judges would not be limited in the amount of information that might prohibit them from exercising their “clinical” role. Evidence prohibited at trial—such as hearsay—was admissible at sentencing, and the judge needed only find by a preponderance of the evidence (i.e., “more likely than not” or “a 51% probability”) that the evidence supported the factual determinations. For the Williams Court, the rehabilitative ideal not only justified entrusting judges and parole officials with enormous sentencing discretion, but also called for those “experts” to be “freed from any procedural rules that might limit the sound exercise of their discretion,” as Professor Douglas A. Berman explained in “Reconceptualizing Sentencing,” University of Chicago Legal Forum (2005). By 1970, the Williams holding was codified at 18 U.S.C. § 3577, which specified that “no limitation shall be placed on the information concerning the background, character, and conduct of a person” being sentenced. The Section was re-codified to 18 U.S.C. § 3661 in response to sentencing reforms of the 1980s.

In United States v. Sweig, 454 F.2d 181 (2d Cir. 1972), Martin Sweig was convicted of just one of the 15 counts of perjury alleged at trial, and the jury acquitted him of the remaining 14. At sentencing, the judge imposed a sentence of 30 months, stating he based the sentence, in part, on evidence presented at trial relating to Sweig’s participation in the offenses for which he had been acquitted. Sweig appealed, arguing that, unlike other evidence courts may consider at sentencing, acquitted conduct was materially different because it involved re-litigation of facts previously decided by the jury.

But the Second Circuit ruled that acquittal “does not have the effect of conclusively establishing the untruth of all the evidence introduced against the defendant ... the jury may have believed all such evidence to be true, but have found that some essential element of the charge was not proved.” The Sweig Court affirmed the judgment.

However, growing problems with indeterminate sentencing eventually led to an institutional shake up. Judges had no training in how to exercise their considerable discretion. Sentencing was not taught in law schools; concepts such as deterrence and rehabilitation were not reflected in judicial training. There was wide disparity in sentencing for similar offenses. These disparities were shown to exist due to the differing philosophies of the judges and based on the characteristics of the offenders.

Concerned about the implications of incongruous sentencing results and the uncertainty caused by indeterminate sentencing, Congress passed the Sentencing Reform Act of 1984 (“SRA”). The SRA required, inter alia, courts to impose a determinate sentence and to state in open court the reasons for imposing the particular sentence. The SRA also abolished parole.

To assist courts in this regime, the SRA created the United States Sentencing Commission (“USSC”). The USSC was tasked with developing the United States Sentencing Guidelines (“USSG”). The USSG reflect what is characterized as a “modified real offense system.” This means the USSG determine punishment not only based on the offense of conviction, but also on the characteristics of the defendant and the circumstances specific to each offense. In theory, this means a repeat offender who beats his robbery victim will be punished more severely than the first-time robber who only threatened his victim.

Under this system, each federal offense is assigned a base offense level (“BOL”) from 1 to 43. Generally speaking, the higher the BOL, the more severe the offense and the greater the punishment. The sentencing court also considers the circumstances of the specific offense or the “real” factors based on the USSG categories of general adjustments and modifications for mitigating and aggravating circumstances. For example, a defendant that displayed or brandished a firearm would be subject to an increase of points added to his BOL.

The USSG also account for characteristics specific to the defendant. Each BOL has a Criminal History Category (“CHC”) from I to VI. Again, the higher the CHC, the greater the possible punishment. The USSG utilize a table with the BOL’s running top to bottom, 1 thru 43, and the CHCs running left to right, I thru VI. Where a BOL meets beneath the appropriate CHC, there is a box with a Guidelines Sentencing Range (“GSR”) showing either a range of months in prison or a life term. For example, the GSR of a BOL of 24 with a CHC of I is 51-63 months.
Sentencing courts must choose a specific term in months from the GSR (or “Life” if applicable) as the SRA replaced indeterminate sentences with determinate sentences.

Additionally, the language and philosophy of 18 U.S.C. § 3661 was incorporated into USSG §§ 1B1.3 and 1B1.4 under the heading “relevant conduct.”

Section 1B1.3(A) provides that sentencing judges are to consider “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant.” And § 1B1.4 provides: “In determining the sentence to impose within the guideline range, or whether a departure from the guidelines is warranted, the court may consider, without limitation, any information concerning the background, character, and conduct of the defendant, unless otherwise prohibited by law.” The SRA made it mandatory that the courts impose a sentence from within the calculated GSR, unless that sentence exceeds the statutory maximum prescribed by Congress. And in Witte v. United States, 515 U.S. 389 (1995), the Supreme Court of the United States (“SCOTUS”) held that sentencing courts are required to undertake the “relevant conduct” analysis of §§ 1B1.3 and 1B1.4.

Flawed Reasoning Offered
to Uphold Acquitted
Conduct Sentencing

In United States v. Watts, 117 S. Ct. 633 (1997), defendant Vernon Watts was indicted for possession of cocaine base, 21 U.S.C. 841(a)(1), and for using a firearm in relation to a drug offense, 18 U.S.C. 924(c). The jury found Watts guilty of the cocaine offense but acquitted him of the 924(c) offense. But at sentencing, the judge found by a preponderance of the evidence that “Watts had possessed the guns in connection with the drug offense.” Despite Watts’ acquittal of the 924(c) offense, the judge added two points to Watts’ BOL based upon the firearm when calculating the GSR and sentenced him to 262 months. Watts appealed.

A panel of the Ninth Circuit affirmed Watts’ conviction but vacated the sentence, United States v. Watts, 67 F.3d 790 (9th Cir. 1995), based on United States v. Brady, 928 F.2d 844 (9th Cir. 1991), in which the court held that “a sentencing judge may not, under any standard of proof, rely on facts of which the defendant was acquitted.” This Brady holding made the Ninth Circuit an outlier because every other federal circuit permitted sentencing judges to consider acquitted conduct. The Ninth Circuit remanded Watts for resentencing. The Government filed a petition for certiorari, which SCOTUS granted.

SCOTUS held that a sentencing judge may consider, for sentencing purposes, conduct of which a defendant has been acquitted if the conduct had been proven by a preponderance of the evidence. Watts. SCOTUS pointed to 18 U.S.C. § 3661 and USSG §§ 1B1.3 and 1B1.4, which give courts broad discretion to consider multiple types of information at sentencing, and explained that an acquittal “does not prove that the defendant is innocent; it merely proves the existence of a reasonable doubt as to his guilt.” Watts. In response to the Ninth Circuit’s concern that consideration of acquitted conduct punishes a defendant for a charge for which he or she had been found “not guilty,” SCOTUS cited the Witte Court’s explanation that “sentencing enhancements do not punish a defendant for crimes of which he was not convicted, but rather increases his sentence because of the manner in which he committed the crime of conviction.”

The Watts Court cited McMillan v. Pennsylvania, 477 U.S. 79 (1986), for the constitutionality of the preponderance of the evidence standard during the sentencing phase of criminal trials. In McMillan, SCOTUS upheld a provision of Pennsylvania’s Mandatory Minimum Sentencing Act (“MMSA”), which subjected defendants convicted of certain enumerated felonies to a mandatory five-year minimum sentence if the defendants were found, by a preponderance of the evidence, to have “visibly possessed a firearm” during the commission of the offense. According to SCOTUS, because the MMSA’s five-year mandatory minimum was a “sentencing factor,” and not an element of the underlying charged offense, proof beyond a reasonable doubt was not required, and the preponderance of the evidence standard satisfied due process. SCOTUS has since repeatedly reaffirmed that sentencing judges may determine by a preponderance of the evidence the facts relevant in selecting an appropriate sentence. See, e.g., United States v. Booker, 543 U.S. 220 (2005); Alleyne v. United States, 133 S. Ct. 2151 (2013). This line of flawed reasoning has led to horrific results as the following examples illustrate.

Cheryl Ann Putra was charged with aiding and abetting in connection with the sale to a government informant of one ounce of cocaine on May 8, 1992, and another count of the same offense for the sale of five ounces on May 9, 1992. The jury convicted her of the May 8th incident but acquitted her of the May 9th incident. At sentencing, the judge determined by a preponderance of the evidence that Putra had participated in the May 9th transaction. Explaining that Putra’s involvement in the May 9th transaction was “relevant conduct” under USSG § 1B1.3, the judge added the drug amounts from both transactions, which gave Putra a GSR of 27 to 33 months. Had Putra been convicted of both charged offenses, her GSR would have been the same 27 to 33 months. Without the use of the acquitted conduct, Putra’s GSR would’ve been 15 to 21 months. The court sentenced her to 27 months. See United States v. Putra, 78 F.3d 1386 (9th Cir. 1996).

In United States v. Mercado, 474 F.3d 654 (9th Cir. 2007), defendant Mercado was convicted by jury of various counts of drug conspiracy. But the jury acquitted Mercado of participation in three murders, violent crimes in the aid of racketeering, and assault with a deadly weapon. Based on his drug convictions, Mercado’s GSR was 30 to 37 months. But at sentencing, the judge considered the acquitted conduct, finding by a preponderance of the evidence that Mercado had participated in those crimes and sentenced him to 20 years in prison.

In the early 1990s, a jury in a Maine state court acquitted Henry Lombard, Jr. of two counts of murder. Then in 1994, a federal jury convicted Lombard of one count of illegal possession of a firearm. At his sentencing, the judge found that Lombard had participated in the two murders of which he had been acquitted, added points to his GSR, and sentenced him to life in prison.

In 2015, Vincent Asaro was tried on charges related to his alleged participation in a 1978 robbery and a 1969 murder. The jury acquitted Asaro of all charges. In 2017, Asaro pleaded guilty to a separate offense, and his GSR was 33-41 months in prison. But the judge who had presided at his earlier trial was also the judge who sentenced him on his 2017 conviction. The judge explicitly stated she was “firmly convinced” that the government had proved the charged crimes at the 2015 trial and sentenced Asaro to 96 months based on the acquitted conduct from that earlier trial. United States v. Asaro, No. 17-CR-127 (E.D.N.Y. Dec. 28, 2017).

On September 18, 2018, police recovered drugs and a firearm from a hotel room. Although the room wasn’t registered to Erick Osby, he had paid for a portion of the stay. Then on September 27, 2018, police found drugs and another gun in a vehicle where Osby was a passenger. Osby was charged with three drug-related offenses and a possession of a firearm offense in connection with the hotel room and two additional drug-related offenses and another firearm offense in connection with the vehicle. The jury found Osby guilty of only the two drug-related offenses stemming from the vehicle and acquitted him of all the remaining offenses. His GSR was 24-30 months on his convictions. But at sentencing, the judge found Osby had participated in the crimes for which the jury had acquitted him and calculated Osby’s GSR at 87-108 months. The judge sentenced Osby to 87 months—the same sentence Osby would have received had he been convicted of all seven counts.

Why Acquitted Conduct Sentencing Must End

The hallmark of the American judicial process, enshrined in the Sixth Amendment to the U.S. Constitution, is the right to a trial by jury and the concomitant right of requiring the government to prove guilt beyond a reasonable doubt. As observed by U.S. Supreme Court Justice Brennan, “the requirement of proof beyond a reasonable doubt has this vital role in our criminal procedure for cogent reasons.... There is always, in litigation, a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value—as a criminal defendant in his liberty—this margin of error is reduced as to him by the process of placing on the other party the burden of ... persuading the factfinder at the conclusion of the trial of his guilt beyond a reasonable doubt. Due process commands that no man shall lose his liberty unless the Government has borne the burden of ... convincing the factfinder of his guilt.” In re Winship, 397 U.S. 358 (1970).

While the preponderance of the evidence standard is most often sufficient for determination of the facts in civil trials, the Winship Court found that, in criminal trials “a person ... would be at a severe disadvantage, a disadvantage amounting to a lack of fundamental fairness, if he could be adjudged guilty and imprisoned for years on the strength of the same evidence as would suffice in a civil case.”

The holdings of McMillan, Witte, and Watts are questionable in light of the sea change in SCOTUS’ Sixth Amendment jurisprudence beginning with Apprendi v. New Jersey, 530 U.S. 466 (2000). Consistent with Winship, Apprendi and its progeny have repeatedly upheld the principle that any sentencing fact that has the effect of increasing the statutory maximum punishment for an offense must be found by a jury beyond a reasonable doubt unless admitted by the defendant.

Since the SRA made the USSG mandatory, it could be argued that the GSR is the “statutory maximum,” and any fact that would increase the GSR must be found by a jury. But when confronted with this very issue, SCOTUS side-stepped it by excising language from the SRA that made the USSG mandatory, holding instead that the USSG are “advisory only.” United States v. Booker, 543 U.S. 220 (2005). In other words, the GSR initially calculated from the BOL and CHC would no longer be mandatory—i.e., the initial GSR would no longer be the statutory maximum punishment. This freed judges to continue the practice of increasing the GSR via relevant conduct based upon a preponderance of the evidence. The only limitation now would be the statutory maximum prescribed by Congress in the United States Code.

But as Circuit Judge Millett wrote in her concurring opinion in United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015), the “requirement that the jury, not a judge, find facts fixing the permissible sentencing range applies to statutory limitations; it is hard to understand why the same principle would not apply to dramatic departures from the Sentencing Guidelines range based on acquitted conduct. After all, the Supreme Court has held that, as a matter of law, a sentence within the Guidelines range is presumptively reasonable and lawful, and any ‘major departure’ from that range requires ‘significant justification.’” (Citing Gall v. United States, 552 U.S. 38 (2007)).

Judge Millet continued: “Because the Sentencing Guidelines have ‘force as the framework for sentencing,’ Peugh v. United States, 133 S. Ct. 2072, 2083 (2013), and because, in the usual case, ‘the judge will use the Guidelines range as the starting point in the analysis and impose sentence within the range,’ Freeman V. United States, 131 S. Ct. 2685, 2692 (2011), the Guidelines demark the de facto boundaries of a legally authorized sentence in the mine run of cases. Given that reality, the Sixth Amendment should not tolerate the use of acquitted conduct specifically rejected by the jury to provide the required ‘significant justification’ for” increasing a defendant’s sentence.” Bell.

In Jones v. United States, 135 S. Ct. 8 (2014), Justice Scalia, joined by Justice Ginsburg and Justice Thomas, observed in his dissent from the denial of certiorari that petitioners Joseph Jones, Desmond Thurston, and Antwuan Ball had been convicted of distributing a small amount of cocaine base but acquitted of conspiring to distribute drugs. The USSG recommended sentences of 27 to 71 months for their convictions. But at sentencing, the judge found the petitioners had engaged in the conspiracy of which the jury had acquitted them—and based on that finding, the judge sentenced them to 180, 194, and 225 months respectively.

Scalia wrote, “Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been ‘substantively unreasonable’ and therefore illegal. If so, their constitutional rights were violated. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, requires that each element of a crime be either admitted by the defendant, or proved to the jury beyond a reasonable doubt. Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime and must be found by a jury, not a judge. We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows 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 either be admitted by the defendant or found by the jury. It may not be found by a judge.... For years, however, we have refrained from saying so.... This has gone on long enough.” (internal citations omitted)

Not only does permitting judges to find facts based upon a preponderance of the evidence violate the right to have one’s guilt proven beyond a reasonable doubt, in the context of acquitted conduct sentencing, it cuts to the heart of the right to a trial by jury and greatly diminishes the role of the jury.

The right to a jury trial developed as a “check or control” on executive power—an essential “barrier” between “the liberties of the people and the prerogative of the crown.” Duncan v. Louisiana, 391 U.S. 145 (1968). The tradition of independent juries standing as a barrier against unsupported or unjust prosecutions pre-dates the signing of the Magna Carta. Clay Conrad, Jury Nullification: The Evolution of a Doctrine (2d ed. 2014). A landmark pre-colonial decision on the sanctity of jury acquittals was Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670). Bushell was one of an English jury that refused to convict William Penn for violating the Conventicle Act, which prohibited more than five people assembling for religious services outside the control of the Church of England. The trial judge essentially ordered the jury to return a verdict of guilty and imprisoned the jurors when they refused. But the Court of Common Pleas granted a writ of habeas corpus to Bushell, cementing the authority of a jury to acquit against the wishes of the Crown.

In the American colonies, the independence of the jury was also firmly established. John Peter Zenger was charged with seditious libel for printing newspaper articles critical of the royal governor of New York. The jury refused to convict notwithstanding Zenger’s factual culpability. Albert W. Alschuler & Andrew G. Deiss, “A Brief History of the Criminal Jury in the United States,” 61 U.Chi.L.Rev. 867 (1994). Colonial juries often acquitted simply because they were aware of the consequences of a conviction. The juries were not only able—but were expected—to tailor their verdicts to prevent excessive punishment. William M. Blackstone, Commentaries on the Laws of England, Vol. 4 (1769) (juries often found the value of stolen goods to be less than twelvepence in order to avoid the mandatory death penalty for theft of more valuable goods). The jury trial was understood not just to be a fair means of deciding guilt or innocence, but as an independent institution designed to give the community a central role in the administration of justice.

For these reasons, the community has its own strong interest—separate from that of the individual defendant’s—in seeing that its verdicts are given great deference. And nowhere is that more true than in the context of a jury acquittal, which the constitution regards as inviolate. Burks v. United States, 437 U.S. 1 (1978). When judges sentence on the basis of acquitted conduct, they fundamentally undermine the community’s duty and prerogative to oversee the administration of criminal justice.

The five justices in the majority in Blakely v. Washington, 542 U.S. 296 (2004), were deeply disturbed by the USSG requiring an equivalent of a conviction for “uncharged, dismissed and acquitted crimes without the fundamental components of ... notice, jury trial, and proof beyond a reasonable doubt.” (Note: alleged facts in uncharged and dismissed charges may also be used by judges at sentencing to enhance the punishment—this practice is beyond the scope of this article as it is monumentally different from the practice of enhancing sentences based on facts that a jury has found untrue.) The five justices declared that “real conduct” sentencing and the related relevant conduct provisions of the USSG are an “assault” on the Sixth Amendment’s “fundamental reservation of power” in the people within “our constitutional structure.” The justices observed that “the jury could not function as circuit breaker in the State’s machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.” Blakely.

Additionally, acquitted conduct sentencing promotes racial bias and is laden with inequities directed at ethnic minorities. People of color and ethnic minorities make up more than 75% of the prison population but constitute only 25% of the U.S. population. And according to United States District Judge Lynn Adelman and his law clerk Jon Dietrich, the average sentence for a Black prisoner is about 25% longer than for a white prisoner. Said another way, more Black and ethnic minority defendants have acquitted conduct used against them than do white defendants.

Also, acquitted conduct sentencing enables coercive plea bargaining by stacking the deck in favor of the prosecutor. As Judge Millett explained in Bell, “factoring acquitted conduct into sentencing decisions imposes almost insurmountable pressure on defendants to forgo their constitutional rights to a trial by jury. Defendants will face all the risks of conviction, with no practical upside to acquittal unless they can run the board and are absolved of all charges.” Prosecutors often charge numerous offenses based on the alleged acts of the accused. Defendants are aware that even when acquitted of all charges save one, they might still receive the maximum penalty allowed as if they had been convicted on all charges. This leads many defendants to plead guilty to lesser offenses for shorter sentences—even when they are, in fact, not guilty.

Finally, acquitted conduct sentencing violates double jeopardy in that it does not respect the finality of the jury’s verdict while giving prosecutor’s a second chance to convict. That is, even though the jury acquitted of these offenses during the guilt phase, the prosecutor then gets another chance at sentencing to convince the judge based on a preponderance of the evidence that the defendant did perform the acts that led to the charged offenses. But one court has clearly stated how this violates the constitution: “The acquitted defendant is to be treated as innocent and in the interests of fairness and finality made no more to answer for his alleged crime.” State v. Wakefield, 278 N.W.2d 307 (Minn. 1979).

Attempts at Reform

To date, SCOTUS has steadfastly resisted opportunities to declare acquitted conduct sentencing unconstitutional. The Court has repeatedly denied certiorari in cases such as Jones that would have placed the issue squarely before it.

However, given SCOTUS’ persistent reluctance in confronting the unconstitutionality of acquitted conduct sentencing, other efforts at reform have been ongoing. Congress explicitly delegated to the USSC the “duty to review and revise the Guidelines.” Braxton v. United States, 500 U.S. 344 (1991). And in his concurrence in Bell, then Circuit Judge Kavanaugh (now U.S. Supreme Court justice) opined that “given the Supreme Court’s case law, it likely will take some combination of Congress and the Sentencing Commission to systematically change federal sentencing to preclude use of acquitted or uncharged conduct.”

But beginning with a proposal in 1993, the USSC has rejected amendments to limit the use of acquitted conduct under the relevant conduct provisions of the USSG. The SRA directed the USSC to present regularly amendments to Congress. Therefore, it seems that the USSC does possess the authority to propose any amendment it likes and submit it to Congress for review. But in Watts, Justice Scalia argued that § 3661 prohibits the USSC from amending acquitted conduct beyond consideration of the sentencing judge. If this were correct, then much of the USSG would already be invalid. For example, with regard to offender characteristics such as age, education, mental and emotional condition, physical condition, employment record, family and community ties, and prior good works in the community—these are excluded at sentencing. The same is true of age, sex, national origin, creed, religion, and socio-economic status.

Amending the USSG is not a novel idea. The USSC developed, considered, and rejected amendments that would have restricted use of acquitted conduct under the USSG in 1993, 1994, and 1997.

And members of Congress have also been actively seeking to end acquitted conduct sentencing. Senate Bill 601 (“SB 601”) was introduced in the 117th Congress (2021-2022) by Senator Richard Durbin, Chairman of the Senate Judiciary Committee. Titled the “Prohibiting Punishment of Acquitted Conduct Act of 2021,” SB 601 seeks, inter alia, to amend 18 U.S.C. § 3661 to prohibit any court of the United States from considering acquitted conduct for the purpose of determining the appropriate GSR, except for the purposes of mitigation.

SB 601 is endorsed by no fewer than 24 diverse organizations ranging from the National Association of Criminal Defense Lawyers to Americans for Prosperity to The Sentencing Project. (This Act has also been introduced in the House of Representatives as House Bill 1621 sponsored by Representative Steve Cohen.)


Acquittal, as a formal exoneration of criminal culpability, is unique. Prior to trial, all defendants are presumed innocent until proven guilty beyond a reasonable doubt. But an acquittal is more than a means of keeping that presumption intact. An acquittal is a declaration by a jury that the accused is innocent of the charged offense, and the accused cannot ever be held to answer again to those accusations. The jury’s verdict is a final and solemn public declaration of these facts—both to the government and to the community.

Allowing a judge at sentencing to cast aside the verdict as a meaningless formality and then to relitigate those facts to substitute their own findings—on a lesser standard of proof yet—is nothing less than the disparaging of our American judicial heritage and the emasculating of our constitutional right to trial by jury. Acquitted conduct sentencing nullifies the Fifth Amendment’s Due Process Clause and Double Jeopardy prohibition as well as the Sixth Amendment right to have one’s guilt proven to a jury beyond a reasonable doubt.

To paraphrase a visionary, those who hold illegitimate power over the lives of others will not voluntarily relinquish that power—it must be seized from them. Let us support the legislative efforts to end the practice of acquitted conduct sentencing. Let us support organizations actively seeking an end to acquitted conduct sentencing. Let us take back our power from those who trample the U.S. Constitution. Acquitted conduct sentencing must end now.

Additional sources: Addressing the Gross Injustice of Acquitted Conduct Sentencing,; Senate Bill 601 text,; A Look at the Use of Acquitted Conduct in Sentencing, 88 Supreme Court Review 809 (1998); Acquitted, then Sentenced,; Critical Analysis of Acquitted Conduct Sentencing in the U.S.: Kafkaesque, Repugnant, Uniquely Malevolent, and Pernicious, Orhun Hakan Yalincak, 54 Santa Clara Law Review 873 (2014); If at First You Don’t Succeed - Abolishing the Use of Acquitted Conduct in Guidelines Sentencing, Barry L. Johnson, 75 N.C.L.Rev. 153 (1996);


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Related legal cases

People v. Beck

Alleyne v. U.S.

Supreme Court of the United States
570 U.S. 99; 133 S.Ct. 2151; 186 L.Ed.2d 314

Alleyne Ryan ALLEYNE, Petitioner

No. 11–9335.

Argued Jan. 14, 2013.

Decided June 17, 2013.

Syllabus FN*

FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

*1 Petitioner Alleyne was charged, as relevant here, with using or carrying a firearm in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A), which carries a 5–year mandatory minimum sentence, § 924(c)(1)(A)(i), that increases to a 7–year minimum “if the firearm is brandished,” § 924(c)(1)(A)(ii), and to a 10–year minimum “if the firearm is discharged,” § 924(c)(1)(A)(iii). In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7–year sentence on the § 924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge's finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relying on this Court's holding in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524, that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne's objection was foreclosed by Harris.

Held : The judgment is vacated, and the case is remanded. Pp. –––– – ––––.

457 Fed. Appx. 348, vacated and remanded.

Justice THOMAS delivered the opinion of the Court with respect to Parts I, III–B, III–C, and IV, concluding:

1. Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled. Pp. –––– – ––––.

(a) Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, concluded that any “ ‘facts that increase the prescribed range of penalties to which a criminal defendant is exposed’ “ are elements of the crime, id., at 490, and thus the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt, id., at 484. Apprendi 's principle applies with equal force to facts increasing the mandatory minimum, for a fact triggering a mandatory minimum alters the prescribed range of sentences to which a criminal defendant is exposed. Id., at 490. Because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense. It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime. The fact that criminal statutes have long specified both the floor and ceiling of sentence ranges is evidence that both define the legally prescribed penalty. It is also impossible to dispute that the facts increasing the legally prescribed floor aggravate the punishment, heightening the loss of liberty associated with the crime. Defining facts that increase a mandatory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment, see id., at 478–479, and preserves the jury's historic role as an intermediary between the State and criminal defendants, see United States v. Gaudin, 515 U.S. 506, 510–511, 115 S.Ct. 2310, 132 L.Ed.2d 444. In reaching a contrary conclusion, Harris relied on the fact that the 7–year minimum sentence could have been imposed with or without a judicial finding of brandishing, because the jury's finding authorized a sentence of five years to life, 536 U.S., at 561, but that fact is beside the point. The essential Sixth Amendment inquiry is whether a fact is an element of the crime. Because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received had a different range been applicable. There is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum. Pp. –––– – ––––.

(b) This ruling does not mean that any fact that influences judicial discretion must be found by a jury. This Court has long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g., Dillon v. United States, 560 U.S. ––––, ––––. Pp. –––– – ––––.

*2 2. Here, the sentencing range supported by the jury's verdict was five years' imprisonment to life, but the judge, rather than the jury, found brandishing. This increased the penalty to which Alleyne was subjected and violated his Sixth Amendment rights. Pp. –––– – ––––.

Justice THOMAS, joined by Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN, concluded in Parts II and III–A:

1. The Sixth Amendment right to trial “by an impartial jury,” in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Gaudin, 515 U.S., at 510. Several divided opinions of this Court have addressed the constitutional status of a “sentencing factor.” In McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 91 L.Ed.2d 67, the Court held that facts found to increase a mandatory minimum sentence are sentencing factors that a judge could find by a preponderance of the evidence. In Apprendi, however, the Court declined to extend McMillan to a New Jersey statute that increased the maximum term of imprisonment if the trial judge found that the crime was committed with racial bias, 530 U.S., at 470, finding that any fact that increased the prescribed statutory maximum sentence must be an “element” of the offense to be found by the jury. Id., at 483, n. 10, 490. Two years later in Harris, the Court declined to apply Apprendi to facts that increased the mandatory minimum sentence but not the maximum sentence. 536 U.S., at 557. Pp. –––– – ––––.

2. The touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an “element” of the charged offense. United States v. O'Brien, 560 U.S. 218, ––––, 130 S.Ct. 2169, 176 L.Ed.2d 979. Apprendi 's definition necessarily includes not only facts that increase the ceiling, but also those that increase the floor. At common law, the relationship between crime and punishment was clear. A sentence was prescribed for each offense, leaving judges with little sentencing discretion. If a fact was by law essential to the penalty, it was an element of the offense. There was a well-established practice of including in the indictment, and submitting to the jury, every fact that was a basis for imposing or increasing punishment. And this understanding was reflected in contemporaneous court decisions and treatises. Pp. –––– – ––––.

Justice BREYER, agreeing that Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524, should be overruled, concluded that he continues to disagree with Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435, because it fails to recognize the law's traditional distinction between elements of a crime and sentencing facts, but finds it highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence. Overruling Harris and applying Apprendi 's basic jury-determination rule to mandatory minimum sentences would erase that anomaly. Where a maximum sentence is at issue, Apprendi means that a judge who wishes to impose a higher sentence cannot do so unless a jury finds the requisite statutory factual predicate. Where a mandatory minimum sentence is at issue, Apprendi would mean that the government cannot force a judge who does not wish to impose a higher sentence to do so unless a jury finds the requisite statutory factual predicate. Pp. –––– – ––––.

*3 THOMAS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–B, III–C, and IV, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and an opinion with respect to Parts II and III–A, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring in opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed an opinion concurring in part and concurring in the judgment. ROBERTS, C.J., filed a dissenting opinion, in which SCALIA and KENNEDY, JJ., joined. ALITO, J., filed a dissenting opinion.


Mary E. Maguire, for Petitioner.

Michael R. Dreeben, Washington, DC, for Respondent.

Mary E. Maguire, Ass't Federal Public Defender, Counsel of Record, Patrick L. Bryant, Appellate Attorney, Frances H. Pratt, Ass't Federal Public Defender, Michael S. Nachmanoff, Federal Public Defender for the Eastern District of Virginia, Richmond, VA, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Lanny A. Breuer, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Counsel of Record, Eric J. Feigin, Assistant to the Solicitor General, Sonja M. Ralston, Attorney Department of Justice, Washington, DC, for Respondent.

Justice THOMAS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, III–B, III–C, and IV, and an opinion with respect to Parts II and III–A, in which Justice GINSBURG, Justice SOTOMAYOR, and Justice KAGAN join.

*4 In Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), this Court held that judicial factfinding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. We granted certiorari to consider whether that decision should be overruled. 568 U.S. –––– (2012).

Harris drew a distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum. We conclude that this distinction is inconsistent with our decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and with the original meaning of the Sixth Amendment. Any fact that, by law, increases the penalty for a crime is an “element” that must be submitted to the jury and found beyond a reasonable doubt. See id., at 483, n. 10, 490. Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled.


Petitioner Allen Ryan Alleyne and an accomplice devised a plan to rob a store manager as he drove the store's daily deposits to a local bank. By feigning car trouble, they tricked the manager to stop. Alleyne's accomplice approached the manager with a gun and demanded the store's deposits, which the manager surrendered. Alleyne was later charged with multiple federal offenses, including robbery affecting interstate commerce, 18 U.S.C. § 1951(a), and using or carrying a firearm in relation to a crime of violence, § 924(c)(1)(A). Section 924(c)(1)(A) provides, in relevant part, that anyone who “uses or carries a firearm” in relation to a “crime of violence” shall:

“(i) be sentenced to a term of imprisonment of not less than 5 years;

“(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

“(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

The jury convicted Alleyne. The jury indicated on the verdict form that Alleyne had “[u]sed or carried a firearm during and in relation to a crime of violence,” but did not indicate a finding that the firearm was “[b]randished.” App. 40.

The presentence report recommended a 7–year sentence on the § 924(c) count, which reflected the mandatory minimum sentence for cases in which a firearm has been “brandished,” § 924(c)(1)(A)(ii). Alleyne objected to this recommendation. He argued that it was clear from the verdict form that the jury did not find brandishing beyond a reasonable doubt and that he was subject only to the 5–year minimum for “us[ing] or carr[ying] a firearm.” Alleyne contended that raising his mandatory minimum sentence based on a sentencing judge's finding that he brandished a firearm would violate his Sixth Amendment right to a jury trial.

The District Court overruled Alleyne's objection. It explained that, under Harris, brandishing was a sentencing factor that the court could find by a preponderance of evidence without running afoul of the Constitution. It found that the evidence supported a finding of brandishing, and sentenced Alleyne to seven years' imprisonment on the § 924(c) count. The Court of Appeals affirmed, likewise noting that Alleyne's objection was foreclosed by Harris. 457 Fed.Appx. 348 (C.A.4 2011) ( per curiam ).


*5 The Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with the Due Process Clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995); In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). The substance and scope of this right depend upon the proper designation of the facts that are elements of the crime.


The question of how to define a “crime”—and, thus, how to determine what facts must be submitted to the jury—has generated a number of divided opinions from this Court. The principal source of disagreement is the constitutional status of a special sort of fact known as a “sentencing factor.” This term was first used in McMillan v. Pennsylvania, 477 U.S. 79, 86, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), to refer to facts that are not found by a jury but that can still increase the defendant's punishment. Following McMillan 's introduction of this term, this Court has made a number of efforts to delimit its boundaries.

McMillan initially invoked the distinction between “elements” and “sentencing factors” to reject a constitutional challenge to Pennsylvania's Mandatory Minimum Sentencing Act, 42 Pa. Cons.Stat. § 9712 (1982). That law provided that anyone convicted of certain felonies would be subject to a mandatory minimum sentence if the judge found, by a preponderance of evidence, that the person “ ‘visibly possessed a firearm’ “ in the course of committing specified crimes. 477 U.S., at 81, n. 1. While the Court acknowledged that there were constitutional limits to the State's ability to “defin[e] crimes and prescrib[e] penalties,” it found that the Commonwealth had permissibly defined visible possession as a sentencing factor, rather than an element. Id., at 86. In the Court's view, this allowed the judge, rather than the jury, to find this fact by a preponderance of evidence without violating the Constitution.

McMillan did not address whether legislatures' freedom to define facts as sentencing factors extended to findings that increased the maximum term of imprisonment for an offense. We foreshadowed an answer to this question in Jones v. United States, 526 U.S. 227, 243, n. 6, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), but did not resolve the issue until Apprendi. There, we ident

U.S. v. Booker

543 U.S. 220; 125 S. Ct. 738; 160 L. Ed. 2d 621


(No. 04-104), (No. 04-105)

October 4, 2004, Argued
January 12, 2005, Decided


The LEXIS pagination of this document is subject to change pending release of the final published version.

SUBSEQUENT HISTORY: As Amended, January 24, 2005. Subsequent appeal at United States v. Booker, 149 Fed. Appx. 517, 2005 U.S. App. LEXIS 21124 (7th Cir. Wis., 2005)
On remand at United States v. Fanfan, 2006 U.S. App. LEXIS 27563 (1st Cir. Me., Nov. 8, 2006)

United States v. Booker, 375 F.3d 508, 2004 U.S. App. LEXIS 14223 (7th Cir. Wis., 2004)

DISPOSITION: Affirmed and remanded and vacated and remanded.

SYLLABUS: Under the Federal Sentencing Guidelines, the sentence authorized by the jury verdict in respondent Booker's drug case was 210-to-262 months in prison. At the sentencing hearing, the judge found additional facts by a preponderance of the evidence. Because these findings mandated a sentence between 360 months and life, the judge gave Booker a 30-year sentence instead of the 21-year, 10-month sentence he could have imposed based on the facts proved to the jury beyond a reasonable doubt. The Seventh Circuit held that this application of the Guidelines conflicted with the Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348, holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Relying on Blakely v. Washington, 542 U.S. ___, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531, the court held that the sentence violated the Sixth Amendment and instructed the District Court either to sentence Booker within the sentencing range supported by the jury's findings or to hold a separate sentencing hearing before a jury. In respondent Fanfan's case, the maximum sentence authorized by the jury verdict under the Guidelines was 78 months in prison. At the sentencing hearing, the District Judge found by a preponderance of the evidence additional facts authorizing a sentence in the 188-to-235-month range, which would have required him to impose a 15- or 16-year sentence instead of the 5 or 6 years authorized by the jury verdict alone. Relying on Blakely's majority opinion, statements in its dissenting opinions, and the Solicitor General's brief in Blakely, the judge concluded that he could not follow the Guidelines and imposed a sentence based solely upon the guilty verdict in the case. The Government filed a notice of appeal in the First Circuit and a petition for certiorari before judgment in this Court.


The judgment of the Court of Appeals in No. 04-104 is affirmed, and the case is remanded. The judgment of the District Court in No. 04-105 is vacated, and the case is remanded.

No. 04-104, 375 F.3d 508, affirmed and remanded; and No. 04-105, vacated and remanded.

Justice Stevens delivered the opinion of the Court in part, concluding that the Sixth Amendment as construed in Blakely applies to the Federal Sentencing Guidelines.

(a) In addressing Washington State's determinate sentencing scheme, the Blakely Court found that Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 ; Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348; and Ring v. Arizona, 536 U.S. 584, 153 L. Ed. 2d 556, 122 S. Ct. 2428, made clear "that the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." 542 U.S., at ___, 159 L. Ed. 2d 403, 124 S. Ct. 2531. As Blakely's dissenting opinions recognized, [***635] there is no constitutionally significant distinction between the Guidelines and the Washington procedure at issue in that case. This conclusion rests on the premise, common to both systems, that the relevant sentencing rules are mandatory and impose binding requirements on all sentencing judges. Were the Guidelines merely advisory--recommending, but not requiring, the selection of particular sentences in response to differing sets of facts--their use would not implicate the Sixth Amendment. However, that is not the case. Title 18 U.S.C. A. § 3553(b) [18 USCS § 3553(b)] directs that a court "shall impose a sentence of the kind, and within the range" established by the Guidelines, subject to departures in specific, limited cases. Because they are binding on all on judges, this Court has consistently held that the Guidelines have the force and effect of laws. Further, the availability of a departure where the judge "finds . . . an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described," § 3553(b)(1), does not avoid the constitutional issue. Departures are unavailable in most cases because the Commission will have adequately taken all relevant factors into account, and no departure will be legally permissible. In those instances, the judge is legally bound to impose a sentence within the Guidelines range. Booker's case illustrates this point. The jury found him guilty of possessing at least 50 grams of crack cocaine, based on evidence that he had 92.5 grams. Under those facts, the Guidelines required a possible 210-to-262-month sentence. To reach Booker's actual sentence--which was almost 10 years longer--the judge found that he possessed an additional 566 grams of crack. Although, the jury never heard any such evidence, the judge found it to be true by a preponderance of the evidence. Thus, as in Blakely, "the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact." 542 U.S., at ___, 159 L. Ed. 2d 403, 124 S. Ct. 2531. Finally, because there were no factors the Sentencing Commission failed to adequately consider, the judge was required to impose a sentence within the higher Guidelines range.

(b) The Government's arguments for its position that Blakely's reasoning should not be applied to the Federal Sentencing Guidelines are unpersuasive. The fact that the Guidelines are promulgated by the Sentencing Commission, rather than Congress, is constitutionally irrelevant. The Court has not previously considered the question, but the same Sixth Amendment principles apply to the Sentencing Guidelines. Further, the Court's pre-Apprendi cases considering the Guidelines are inapplicable, as they did not consider the application of Apprendi to the Sentencing Guidelines. Finally, separation of powers concerns are not present here, and were rejected in Mistretta. In Mistretta the Court concluded that even though the Commission performed political rather than adjudicatory functions, Congress did not exceed constitutional limitations in creating the Commission. 488 U.S., at 393, 388, 102 L. Ed. 2d 714, 109 S. Ct. 647. That conclusion remains true regardless of [***636] whether the facts relevant to sentencing are labeled "sentencing factors" or "elements" of crimes.

Justice Breyer delivered the opinion of the Court in part, concluding that 18 U.S.C. A. § 3553(b)(1) [18 USCS § 3553(b)(1)], which makes the Federal Sentencing Guidelines mandatory, is incompatible with today's Sixth Amendment "jury trial" holding and therefore must be severed and excised from the Sentencing Reform Act of 1984 (Act). Section 3742(e), which depends upon the Guidelines' mandatory nature, also must be severed and excised. So modified, the Act makes the Guidelines effectively advisory, requiring a sentencing court to consider Guidelines ranges, see § 3553(a)(4), but permitting it to tailor the sentence in light of other statutory concerns, see § 3553(a).

(a) Answering the remedial question requires a determination of what "Congress would have intended" in light of the Court's constitutional holding. E.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 767, 135 L. Ed. 2d 888, 116 S. Ct. 2374. Here, the Court must decide which of two approaches is the more compatible with Congress' intent as embodied in the Act: (1) retaining the Act (and the Guidelines) as written, with today's Sixth Amendment requirement engrafted onto it; or (2) eliminating some of the Act's provisions. Evaluation of the constitutional requirement's consequences in light of the Act's language, history, and basic purposes demonstrates that the requirement is not compatible with the Act as written and that some severance (and excision) is necessary. Congress would likely have preferred the total invalidation of the Act to an Act with the constitutional requirement engrafted onto it, but would likely have preferred the excision of the Act's mandatory language to the invalidation of the entire Act.

(b) Several considerations demonstrate that adding the Court's constitutional requirement onto the Act as currently written would so transform the statutory scheme that Congress likely would not have intended the Act as so modified to stand. First, references to "[t]he court" in § 3553(a)(1) --which requires "[t]he court" when sentencing to consider "the nature and circumstances of the offense and the history and characteristics of the defendant"--and references to "the judge" in the Act's history must be read in context to mean "the judge without the jury," not "the judge working together with the jury." That is made clear by § 3661, which removes typical "jury trial" limitations on "the information" concerning the offender that the sentencing "court . . . may receive." Second, Congress' basic statutory goal of diminishing sentencing disparity depends for its success upon judicial efforts to determine, and to base punishment upon, the real conduct underlying the crime of conviction. In looking to real conduct, federal sentencing judges have long relied upon a probation officer's presentence report, which is often unavailable until after the trial. To engraft the Court's constitutional requirement onto the Act would destroy the system by preventing a sentencing judge from relying upon a presentence report for relevant factual information uncovered after the trial. Third, the Act, read to include today's constitutional requirement, would create a system far more complex than Congress could [***637] have intended, thereby greatly complicating the tasks of the prosecution, defense, judge, and jury. Fourth, plea bargaining would not significantly diminish the consequences of the Court's constitutional holding for the operation of the Guidelines, but would make matters worse, leading to sentences that gave greater weight not to real conduct, but rather to counsel's skill, the prosecutor's policies, the caseload, and other factors that vary from place to place, defendant to defendant, and crime to crime. Fifth, Congress would not have enacted sentencing statutes that make it more difficult to adjust sentences upward than to adjust them downward, yet that is what the engrafted system would create. For all these reasons, the Act cannot remain valid in its entirety. Severance and excision are necessary.

(c) The entire Act need not be invalidated, since most of it is perfectly valid. In order not to "invalidat[e] more of the statute than is necessary," Regan v. Time, Inc., 468 U.S. 641, 652, 82 L. Ed. 2d 487, 104 S. Ct. 3262, the Court must retain those portions of the Act that are (1) constitutionally valid, ibid., (2) capable of "functioning independently," Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684, 94 L. Ed. 2d 661, 107 S. Ct. 1476, and (3) consistent with Congress' basic objectives in enacting the statute, Regan, supra, at 653, 82 L. Ed. 2d 487, 104 S. Ct. 3262. Application of these criteria demonstrates that only § 3553(b)(1), which requires sentencing courts to impose a sentence within the applicable Guidelines range (absent circumstances justifying a departure), and § 3742(e), which provides for de novo review on appeal of departures, must be severed and excised. With these two sections severed (and statutory cross-references to the two sections consequently invalidated), the rest of the Act satisfies the Court's constitutional requirement and falls outside the scope of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348. The Act still requires judges to take account of the Guidelines together with other sentencing goals, see § 3553(a)(4); to consider the Guidelines "sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant, " pertinent Sentencing Commission policy statements, and the need to avoid unwarranted sentencing disparities and to restitute victims, §§ 3553(a)(1), (3)-(7); and to impose sentences that reflect the seriousness of the offense, promote respect for the law, provide just punishment, afford adequate deterrence, protect the public, and effectively provide the defendant with needed training and medical care, § 3553(a)(2). Moreover, despite § 3553(b)(1)'s absence, the Act continues to provide for appeals from sentencing decisions (irrespective of whether the trial judge sentences within or outside the Guidelines range). See §§ 3742(a) and (b). Excision of § 3742(e), which sets forth appellate review standards, does not pose a critical problem. Appropriate review standards may be inferred from related statutory language, the statute's structure, and the "sound administration of justice." Pierce v. Underwood, 487 U.S. 552, 559-560, 101 L. Ed. 2d 490, 108 S. Ct. 2541. Here, these factors and the past two decades of appellate practice in cases involving departures from the Guidelines imply a familiar and practical standard of review: [***638] review for "unreasonable[ness]. " See, e.g., 18 U.S.C. § 3742(e)(3) (1994 ed.) [18 USCS § 3742(e)(3)]. Finally, the Act without its mandatory provision and related language remains consistent with Congress' intent to avoid "unwarranted sentencing disparities . . . [and] maintai[n] sufficient flexibility to permit individualized sentences when warranted," 28 U.S.C. § 991(b)(1)(B) [28 USCS § 991(b)(1)(B)], in that the Sentencing Commission remains in place to perform its statutory duties, see § 994, the district courts must consult the Guidelines and take them into account when sentencing, see 18 USC § 3553(a)(4) [18 USCS § 3553(a)(4)], and the courts of appeals review sentencing decisions for unreasonableness. Thus, it is more consistent with Congress' likely intent (1) to preserve the Act's important pre-existing elements while severing and excising §§ 3553(b) and 3742(e) than (2) to maintain all of the Act's provisions and engraft today's constitutional requirement onto the statutory scheme.

(d) Other possible remedies--including, e.g., the parties' proposals that the Guidelines remain binding in cases other than those in which the Constitution prohibits judicial factfinding and that the Act's provisions requiring such factfinding at sentencing be excised--are rejected.

(e) On remand in respondent Booker's case, the District Court should impose a sentence in accordance with today's opinions, and, if the sentence comes before the Seventh Circuit for review, that court should apply the review standards set forth in this Court's remedial opinion. In respondent Fanfan's case, the Government (and Fanfan should he so choose) may seek resentencing under the system set forth in today's opinions. As these dispositions indicate, today's Sixth Amendment holding and the Court's remedial interpretation of the Sentencing Act must be applied to all cases on direct review. See, e.g., Griffith v. Kentucky, 479 U.S. 314, 328, 93 L. Ed. 2d 649, 107 S. Ct. 708. That does not mean that every sentence will give r

U.S. v. Putra





No. 94-10040

1996 U.S. App. LEXIS 3739

February 14, 1995, Argued and Submitted, San Francisco, California
March 5, 1996, Filed

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Hawaii. D.C. No. CR-92-00784-HMF. Harold M. Fong, Chief District Judge, Presiding.


COUNSEL: Richard T. Pafundi, Honolulu, Hawaii, for the defendant-appellant.

Pat Merkamp Stemler, United States Department of Justice, Washington, D.C., for the plaintiff-appellee.

JUDGES: Before: J. Clifford Wallace, Chief Judge, Procter Hug, Jr., and Jerome Farris, Circuit Judges. Opinion by Judge Hug; Dissent by Chief Judge Wallace.


[*1387] OPINION

HUG, Circuit Judge:

Cheryl Ann Putra was convicted of one count of aiding and abetting in the possession of one ounce of cocaine with intent to distribute. She appealed both her conviction and her sentence. In an unpublished memorandum disposition, we affirmed her conviction along with the convictions of her codefendants. United States v. Putra, 1996 U.S. App. LEXIS 3739, No. 94-10040 (filed March 5, 1996). This opinion concerns her appeal of her sentence. Putra contends that the district court improperly considered as "relevant conduct" the cocaine involved in a separate count of which the jury acquitted her. We have jurisdiction under 28 U.S.C. § 1291, [**2] and we remand for resentencing.


Count 18 of Putra's indictment charged her with aiding and abetting in the possession with intent to distribute one ounce of cocaine on May 8, 1992. Count 19 charged her with aiding and abetting possession with intent to distribute five ounces of cocaine on May 9, 1992. In addition, she was charged in Count 2 with conspiring knowingly and intentionally to distribute a quantity of cocaine in excess of 500 grams. Following trial, the jury returned a guilty verdict on Count 18, but it acquitted her on Count 19 and Count 2. However, at sentencing, the district court determined that the preponderance of the evidence showed that Putra was involved in both of the charged aiding and abetting transactions. The court aggregated the amount of cocaine involved in Counts 18 and 19 to determine her offense level, despite the jury acquittal on Count 19. Without the added cocaine from Count 19, Putra's guideline range would have been 15-21 months; with the added cocaine included, her range was 27-33 months. The court sentenced her to 27 months.


The issue on appeal is whether a judge can sentence a defendant for a crime of which the jury found her not guilty. [**3] We review a district court's interpretation of the Sentencing Guidelines de novo. United States v. Buenrostro-Torres, 24 F.3d 1173, 1174 [*1388] (9th Cir. 1994). We conclude that the court erred by failing to apply our prior decision in United States v. Brady, 928 F.2d 844 (9th Cir. 1991).

The court instructed the jury generally on aiding and abetting that:

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through direction of another person as his or her agent, or by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

So, if another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts or conduct of such other persons just as though the defendant had committed the acts or engaged in such conduct.

Notice, however, that before any defendant may be held [**4] criminally responsible for the acts of others, it is necessary that the accused deliberately associate himself in some manner with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find a defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the defendant voluntarily participated in its commission with the intent to violate the law.

The court went on to instruct the jury on the individual offenses. Regarding the counts against Putra, the instructions read in part: "The defendants are charged in Counts . . . 18 [and] 19 . . . with possession with intent to distribute cocaine." The court then set forth the elements of possession.

The jury acquitted Putra of aiding and abetting in the possession with intent [**5] to distribute the five ounces of cocaine involved in Count 19. By acquitting her of this charge, the jury necessarily found that she was not involved in the possession of that cocaine. Putra challenges the court's inclusion of the additional cocaine as improper under the Sentencing Guidelines as interpreted by our decision in Brady.

United States Sentencing Guideline ("U.S.S.G.") § 1B1.3(a)(2) provides that the defendant's base offense level shall be determined, with respect to offenses of a character for which U.S.S.G. § 3D1.2(d) would require grouping, on the basis of all acts and omissions described in subdivision (1)(A) and (1)(B) that were part of the same course of conduct or common scheme or plan as the offense of conviction. Subdivision (1)(A) includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant." U.S.S.G. § 1B1.3(a)(1)(A). Application note 3 further states that under subsection (a)(2), the proper course is to include the total quantity of narcotics involved regardless of the fact that the defendant has not been convicted of the multiple counts. As an example, the application note provides [**6] that where a defendant is engaged in multiple drug sales, as part of the same course of conduct or common scheme or plan, then the total quantity of drugs involved is to be used to determine the offense level, even if the defendant is convicted of a single count charging only one of the sales. U.S.S.G. § 1B1.3, comment. (n.3).

Although U.S.S.G. § 1B1.3, as interpreted by application note 3, indicates it is proper to include the total quantity of drugs involved in the same course of conduct scheme or plan even if the defendant is convicted of only one count, it does not deal with the situation where the defendant was charged with the other count involved and is acquitted. We considered this situation in an analogous context [*1389] in United States v. Brady, 928 F.2d 844 (9th Cir. 1991). In Brady, the jury acquitted the defendant of first degree murder and assault with intent to commit murder, but it convicted him of the lesser included offense of voluntary manslaughter. At sentencing, the court reconsidered the defendant's "state of mind" and departed upward on that basis and on the degree of planning and preparation involved in the offense. Id. at 850. We reversed, concluding [**7] that the Guidelines do not allow "a court to reconsider facts during sentencing that have been rejected by a jury's not guilty verdict." Id. at 851. "Otherwise, any time a judge disagreed with the jury's verdict, the judge could 'reconsider' critical elements of the offense to avoid the restrictions of the Guidelines and push the sentence to the maximum - in effect punishing the defendant for an offense for which he or she had been acquitted." Id. at 851-52.

Likewise, this case presents a situation where allowing an increase in Putra's sentence would be effectively punishing her for an offense for which she has been acquitted. The jury's finding that Putra did not aid or abet in the possession of the five ounces of cocaine on May 9, 1992, is an explicit rejection of her involvement in that transaction. The sentencing court cannot, after the jury's determination on those facts, consider the facts again and conclude that Putra was indeed involved. Although the standard of proof differs for an acquittal and for sentencing, we have specifically rejected this argument as justification for considering facts underlying the jury's acquittal. In Brady, we held that a district court [**8] may not rely upon facts that have been rejected by a jury's not guilty verdict. Id. at 851 & n.12. In this case, the district court's sentence can only be reached if the district court is allowed to disregard the jury verdict on Count 19 and substitute its own factual finding. This is clearly forbidden under Brady.

We note, however, that Brady is a judicial limitation on the facts the district court may consider at sentencing, beyond any limitation imposed by the Guidelines. Thus, our application of Brady to the circumstances of this case is very narrow. We acknowledge that Brady is itself limited by United States v. Vgeri, 51 F.3d 876 (9th Cir. 1995), and United States v. Diaz-Rosas, 13 F.3d 1305 (9th Cir.), cert. denied, 114 S. Ct. 1848 (1994), cases in which the defendants were convicted of the conspiracy count, but acquitted of certain possession counts. Under such circumstances, the district court may hold a defendant accountable for drugs possessed or distributed by co-conspirators, so long as it was in furtherance to jointly undertaken criminal activity and reasonably foreseeable to the defendant. See U.S.S.G. § 1B1.3, comment. (n.2). However, [**9] these cases are not applicable to the facts at hand because Putra was acquitted of the conspiracy charge and of any activity related to the cocaine involved in Count 19. In such a situation, the district court should not consider the narcotics in possession of her codefendants when setting Putra's sentence.

The Government contends that this case nonetheless fits squarely within section 1B1.3 application note 3, and that because Brady did not involve this section, we are not constrained by its holding. We do not agree. The jury's verdict on Count 19 under the court's instructions precludes an application of section 1B1.3 to this case because the jury's verdict rejected Putra's participation in the Count 19 transaction in all respects. U.S.S.G. § 1B1.3 requires a finding that Putra was in someway involved in the May 9 transaction to include the offense as "relevant conduct." The jury's acquittal is a finding that Putra was not involved, did not commit, did not aid or abet, and was not engaged in the May 9, 1992 transaction.

This result is not inconsistent with application note 3 to U.S.S.G. § 1B1.3. The note states that the defendant need not be convicted of multiple offenses [**10] to be sentenced based on the aggregate amount of narcotics involved. This guidance, however, is directed to uncharged conduct where a preponderance of the evidence demonstrates the defendant's involvement; it does not address acquitted conduct. To allow the court to increase Putra's sentence based on acquitted conduct would make the jury's findings of fact pointless and contradict our holding in Brady. Thus, the district court erred by [*1390] including the five ounces of cocaine in Count 19 to increase Putra's sentencing range.

REVERSED and REMANDED for resentencing.



WALLACE, Chief Judge, dissenting:

The majority starts toward the wrong answer by asking the wrong question: "whether a judge can sentence a defendant for a crime of which the jury found her not guilty." Opinion at 3052. Putra was not sentenced or punished for the May 9, 1992, crime. Rather, the district court sentenced her for the crime of which she was convicted, aiding and abetting possession with intent to distribute one ounce of cocaine on May 8, 1992. The issue before us is whether Putra's sentence for this crime may be increased because of her involvement in the May 9 transaction. In [**11] other words, the issue is whether Putra is accountable under section 1B1.3 of the 1991 United States Sentencing Guidelines for the five ounces of cocaine her codefendants possessed with intent to distribute on May 9. Because I believe the district court properly considered this amount in determining Putra's base offense level, I respectfully dissent.

Merely because a jury acquitted Putra on charges related to the May 9 drug transaction does not preclude the district court from including the amount of cocaine involved in that transaction in determining her base offense level. The majority, however, concludes that section 1B1.3 "does not deal with the situation where the defendant was charged with another count involved and is acquitted [on that count]." Id. at 3054. The majority further states that section 1B1.3 "does not address acquitted conduct." Id. at 3056. Such sweeping language contradicts the Guidelines, our practice prior to enactment of the Guidelines, decisions of other circuits, and recent Supreme Court authority.

Section 1B1.3 allows a sentencing court to consider all "relevant conduct" in determining an appropriate sentencing range. Where the defendant has [**12] been charged with multiple counts grouped together pursuant to section 3D1.2(d), such as here, relevant conduct includes "all acts and omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction." U.S.S.G. § 1B1.3(a)(2).

The Application and Background Notes accompanying section 1B1.3 illustrate that the Guidelines allow sentencing courts to consider circumstances surrounding criminal activity for which a defendant was acquitted. Application Note 3 makes it clear that section 1B1.3 does not require Putra "to have been convicted of multiple counts." Id. at comment., n.3. The Note provides the following example:

Where the defendant engaged in three drug sales of 10, 15, and 20 grams of cocaine, as part of the same course of conduct or common scheme or plan, subsection (a)(2) provides that the total quantity of cocaine involved (45 grams) is to be used to determine the offense level even if the defendant is convicted of a single count charging only one of the sales.

Id. Although the Note does not explicitly state that the hypothetical defendant was charged with and acquitted of the two other sales, it is reasonable [**13] to infer that the court dismissed or the jury acquitted the defendant on those counts. Thus, the Note reasonably can be interpreted to mean that a defendant need not be convicted of criminal activity for a court to consider that activity in determining sentencing ranges. United States v. Boney, 298 U.S. App. D.C. 149, 977 F.2d 624, 635 (D.C. Cir. 1992) (Boney).

More to the point is the Background Note to section 1B1.3, which explains that in determining what constitutes relevant conduct under subsection (a)(2), courts should consider "patterns of misconduct" rather than convictions on specific counts because "the distinctions that the law makes as to what constitutes separate counts or offenses often turn on technical elements that are not especially meaningful for purposes of sentencing." Id. Thus, "relying on the entire range of conduct, regardless of the number of counts that are alleged or on which a conviction is obtained, appears to be the most reasonable approach to writing workable guidelines for [offenses [*1391] falling under § 3D1.2(d)]." Id. (emphasis added).

The range of conduct amounting to "acts and omissions that were part of the same course of conduct or common scheme or [**14] plan as the offense of conviction" under subsection (a)(2) includes acts "committed or aided and abetted by the defendant, or for which the defendant would be otherwise accountable." Id. at n.2. Application Note 2 states that a defendant is "otherwise accountable" for the



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