The Case for Using "Acquitted Conduct" at Sentencing

Judges need to rely on the whole picture

On the final day of the term the Supreme Court declined to take up a closely watched case, McClinton v. United States, involving so-called “acquitted conduct” sentencing. The term refers to a judge using facts related to a crime of which a defendant was acquitted to increase the defendant’s sentence for other crimes where he was convicted. (As I’ll explain below, the term “acquitted conduct” sentencing is problematic, but it’s widely used so I’ll use it here for convenience and clarity.)

Although the Court declined to hear the case, Justices Sotomayor, Kavanaugh, Gorsuch and Barrett all noted they believe acquitted conduct sentencing raises serious constitutional issues the Court ultimately may need to address. Other jurists, academics, and members of the defense bar also have criticized the practice.

As Justice Sotomayor observed, the average person might find it “quite strange” that a defendant’s sentence could be increased based on another alleged crime where he was found not guilty. Critics argue acquitted conduct sentencing is fundamentally unfair, violates due process, and undermines the right to trial by jury.

I think these critics are wrong. Proper sentencing requires a judge to consider all relevant facts including, in appropriate cases, facts related to charges where the defendant was acquitted. Any attempt to ban this practice will lead to similarly situated defendants being treated differently due to artificial limits placed on the sentencing judge. In the end that will result in more sentencing unfairness, not less.

Sentencing and the Sentencing Guidelines

We can’t really discuss this issue without some background on sentencing and the federal Sentencing Guidelines.

Suppose a defendant is convicted of a crime where the maximum penalty is twenty years in prison. Before the 1980s, a judge had full discretion to decide on the appropriate sentence that would protect the community, achieve deterrence, provide the appropriate punishment, and help rehabilitate the defendant. The judge would consider all facts and circumstances surrounding the offense and the offender, informed not only by the trial but also by additional information gathered by the probation department during a presentence investigation. Prosecutors and the defense could also provide the judge with information relevant to sentencing at a sentencing hearing.

After considering all the relevant facts, in most cases the judge could impose any sentence from probation -- no jail time -- to the maximum twenty years in prison. Although the judge was free to spell out all the reasons for a particular sentence, that was not required. And if the judge cited some reasons for the sentence but the defense suspected the judge was secretly relying on other, improper factors, that would be almost impossible to prove.

This wide-ranging discretion led to a lot of sentencing disparity: similarly situated defendants receiving dramatically different sentences at the hands of different judges. That’s a problem for any system of justice. In response Congress passed the Sentencing Reform Act in 1984. That act created the U.S. Sentencing Commission, which promulgated the first federal Sentencing Guidelines that went into effect in 1987.

Under the Guidelines, rather than starting with a range of, say, 0-20 years, each criminal offense is assigned a base offense level that corresponds to a much more limited sentencing range. The judge then makes specific findings about the characteristics of the crime that can increase or decrease that offense level – details such as the dollar amount of a fraud, the quantity of drugs involved, the number of victims, whether a firearm was used, etc. The judge makes these sentencing findings by a preponderance of the evidence.

The Guidelines also provide that when making these findings the judge should rely not merely on the facts underlying the conviction but on all other “relevant conduct.” This includes all conduct that arises out of the same common scheme or course of conduct by the defendant, even if that conduct was not charged. It also includes all other acts caused or induced by the defendant and acts of others who were engaged in joint criminal activity with the defendant.

In short, under the Guidelines the judge still considers all the surrounding facts, circumstances, and actions of the defendant, not just those that formed the basis of the conviction. But now the judge is required to spell out those facts and how they affect the Guidelines calculations. The Guidelines thus led to greater transparency in sentencing. No longer could judges simply impose a hefty sentence with little or no explanation -- now they must show their work.

The requirement that judges make detailed findings of fact to justify the Guidelines sentence also had another effect:  it made it easier to claim that the judge relied on improper information, including so-called acquitted conduct. That probably explains why, as Justice Sotomayor observed in her statement about McClinton, you heard almost nothing about acquitted conduct sentencing prior to the Guidelines.

United States v. Booker

Initially the Sentencing Guidelines were mandatory. Guidelines calculations result in a sentencing range expressed in months – for example, 97-121. The judge was required to impose a sentence within that range. The only exception was if the case involved truly extraordinary circumstances that justified a “departure” from the Guideline range – but such departures were rare.

This mandatory system came to an end with the Supreme Court’s 2005 decision in United States v. Booker. The Court ruled that any fact that causes a defendant’s maximum potential sentence to be increased must be found by a jury beyond a reasonable doubt. When judges made sentencing findings that increased the mandatory Guidelines range, the Court held, this right was violated.

Rather than throw out the Guidelines entirely, the Court ruled that they must be merely advisory. After Booker a judge still begins every sentencing by making findings and calculating the Guidelines range, but the resulting range is no longer mandatory. The judge now has greater discretion to depart above or below that range to further the overall goals of sentencing. The sentence will be upheld as long as the court of appeals finds that it was reasonable overall.

Booker thus returned a great deal of sentencing power back to judges. The Guidelines still provide an important starting point in every case. But now the judge in a 20-year felony case once again has the discretion to sentence all the way from probation to the full twenty years, just as she did before the Guidelines, so long as the resulting sentence is reasonable.

The McClinton Case

Dayonta McClinton was convicted for taking part with several other men in the armed robbery of a CVS store. Immediately following the robbery, the perpetrators argued over the disappointing haul. One of them, Malik Perry, was shot in the back of the head and killed after refusing to share the proceeds.

Prosecutors alleged that McClinton had shot Perry and robbed him of the drugs taken during the CVS robbery. McClinton was indicted on four counts: conspiracy to commit robbery and brandishing a firearm during a crime of violence for the CVS robbery, and conspiracy to commit robbery and murder for robbing and killing Perry.

After a trial the jury convicted McClinton of the two counts related to the CVS robbery but found him not guilty on the two counts related to Perry’s death. The initial Guidelines calculation for the CVS crimes was 57-71 months. But the probation department and sentencing judge found that Perry’s murder was “relevant conduct” under the Guidelines, despite McClinton’s acquittal on that charge. This increased the Guidelines range to 324 months to life. The judge then found that a lesser sentence was appropriate based on McClinton’s age and the sentences received by the other participants in the robbery, and sentenced McClinton to 228 months in prison.

In sum, the judge exercised the discretion allowed by Booker and knocked eight years off the minimum sentence called for by the Guidelines. But because the judge used Perry’s shooting as relevant conduct, McClinton ended up sentenced to 19 years rather than the maximum of about 6 years called for by the CVS robbery alone. The judge’s use of the facts surrounding the murder to increase his sentence was what McClinton was challenging in his petition to the Supreme Court.

The Problem With the Term “Acquitted Conduct”

I believe one reason the average person might find the idea of acquitted conduct sentencing “quite strange” is the misleading way the issue has been framed. The term “acquitted conduct” actually makes no sense. Juries don’t acquit defendants of conduct. They acquit them of specific criminal charges that involve specific elements the government must prove.  A jury finding that the government failed to prove a particular crime beyond a reasonable doubt is not equivalent to a finding that the conduct in question did not happen.

Douglas Berman, a law professor and sentencing expert who filed an amicus brief on McClinton’s behalf, used the term “jury-rejected facts.” Respectfully, that’s even worse. Juries don’t “reject facts,” they reject specific legal charges by agreeing that the government has failed to prove at least one element of that charge beyond a reasonable doubt. That doesn’t necessarily mean the jury rejected any particular facts related to that charge.

We generally don’t know why a jury failed to convict. An acquittal could be due to a failure of proof on a critical fact, such as whether a particular defendant was the shooter. But it could also be based on the government’s failure to prove a more technical or jurisdictional element of the offense that has nothing to do with the defendant’s culpable conduct. Or it could be the result of a compromise in the jury room that is not readily explainable based on the evidence.

Terms like “acquitted conduct” or “jury-rejected facts” suggest an acquittal means the jury found the underlying facts did not take place at all. That’s not true. Despite an acquittal, evidence of some of the underlying facts may be quite strong. And in appropriate cases some of those facts may still be relevant to determining the proper sentence.

The Different Standards of Proof

To obtain a conviction the government is required to prove facts to a unanimous jury beyond a reasonable doubt. For sentencing, a judge is required to find facts only by a preponderance of the evidence. That’s because the judge isn’t finding the defendant guilty of a crime. She’s merely finding facts relevant to determining the proper sentence, within the statutory limits, for a crime where the defendant has already been found guilty.

Logically, there is no inconsistency when a judge makes sentencing findings based on conduct related to charges for which the defendant was acquitted. It’s entirely possible for a judge to find that evidence meets the lower preponderance standard even if the jury found it did not rise to the level of proof beyond a reasonable doubt.

The Use of Acquitted Conduct in McClinton’s Case

The robbery charge of which McClinton was convicted carried a maximum sentence of twenty years. The gun charge carried a mandatory consecutive sentence of at least seven years. As a result, the potential sentencing range was anything from probation to twenty-seven years in prison, or even more if the judge went above the minimum on the gun charge. Those who oppose acquitted conduct sentencing argue that when sentencing McClinton for the CVS robbery the judge should have simply pretended the murder that followed the robbery never happened. But this is wrong for several reasons.

First, as I noted above, there is nothing inconsistent about the judge finding by a preponderance of the evidence that McClinton committed the murder, even though the jury failed to convict him of that charge using the higher standard of beyond a reasonable doubt.

Second, as the sentencing judge noted, the murder charge in question required the jury to find that McClinton killed Perry in furtherance of a robbery. It’s entirely possible they believed McClinton was the shooter but did not believe the government proved robbery was the motive.

Finally, the relevant conduct rules provide that when calculating the Guidelines a judge should consider not only the defendant’s own conduct but also conduct of his co-conspirators. Even if McClinton may not have been the shooter, the judge was right to consider his participation in a joint enterprise where a murder resulted. That fact arguably makes McClinton more dangerous and may justify a sentence greater than that for a participant in a robbery where no one was killed.

Fairness and the Right to a Trial by Jury

Although they generally recognize the different standards of proof and the uncertainty about what underlies an acquittal, critics still maintain that acquitted conduct sentencing is unconstitutional, or at least unfair. They argue it gives prosecutors two bites at the apple. Prosecutors can charge a defendant with a crime, even if the evidence is marginal, and if the jury acquits they can then seek to increase the defendant’s sentence for other crimes based on that same conduct. This, critics argue, undermines the right to a trial by jury: if the jury acquits, then anything related to that acquittal should be off limits when it comes to punishment.

This criticism is misplaced. The jury’s role is to determine whether the government has met its burden of proof on a particular charge. It did that by finding McClinton not guilty on two charges. Those verdicts stand undisturbed.

But juries are not concerned with punishment; in fact, they usually are instructed they should not consider the defendant’s potential punishment at all when deliberating. Sentencing is the judge’s job. It’s not possible for a judge to usurp the jury’s role when sentencing, because the jury has no role.

The judge in McClinton’s case was not sentencing him on the murder charge for which he was found not guilty. He was properly considering all surrounding facts when deciding where, within the possible 27-year (or greater) range, McClinton should be sentenced for the serious violent crimes for which he was convicted. The resulting sentence was still well within the legal maximum the judge had the power to impose, even in the absence of Perry’s murder.

Perhaps this seems like an artificial distinction. I’ll grant that it’s not much comfort to McClinton. But this is the outcome that aligns with the traditional role of judge and jury. The alternative is to have judges ignore the facts in front of them and impose sentences based on incomplete information. Someone who participates in a robbery conspiracy where a death results likely deserves an enhanced sentence, whether or not he is the shooter. It’s appropriate for a sentencing judge to take that into consideration.

The Proposed Guidelines Amendments

When the Supreme Court declined to hear McClinton, several Justices noted they thought it was appropriate to defer consideration of the issue because the U.S. Sentencing Commission is currently considering amendments to the Guidelines to address it. In response to criticism of acquitted conduct sentencing, the Commission has proposed an amendment providing that facts underlying an acquitted charge may not be used to determine the guideline range for counts of conviction. However, the sentencing judge could still use those facts to decide where within the resulting Guideline range to sentence the defendant or to decide whether a departure outside the resulting Guideline range is appropriate.

As McClinton’s attorneys noted in a supplemental brief to the Supreme Court, in the world of non-mandatory Guidelines this is not a meaningful change. The judge could always get to the same result by a different path. In McClinton’s case, the judge could have imposed the same sentence by simply finding the Guidelines range for the armed robbery was 57-71 months but that the murder justified departing upward from that range.

This amendment may provide some window dressing and allow the Commission to claim it is responding to concerns about acquitted conduct sentencing. But it also reflects reality: the Commission recognizes that, one way or another, a sentencing judge needs to be able to take account of all relevant facts when fashioning an appropriate sentence – just as judges have always done. That’s the only way to achieve the Guidelines’ overall goal of equity and fairness in sentencing.

This Is What Judges Are For

My biggest problem with the arguments against acquitted conduct sentencing is what they appear to assume about the impotency or incompetence of judges. There will be some cases where consideration of the facts underlying an acquitted count will be appropriate, and some cases where it won’t. If the prosecutor tries to increase a defendant’s sentence based on acquitted conduct where the facts clearly do not support that, the judge can reject it. Judges are not mere passive conduits through which prosecutors work their will.

Sentencing judges have seen the same evidence as the jury. They are trained lawyers, far more experienced at evaluating evidence than jurors are. They may know things about the case and about the defendant that the jury, for various legal reasons, was not allowed to hear. They are in a strong position to make their own evaluation of the evidence and appropriate findings about the defendant’s conduct.

This is what we want judges to do. Booker restored much of the essence of judging: the ability to evaluate all the facts and circumstances and fashion the appropriate sentence for a particular defendant, not unduly bound by rigid rules, exercising both justice and mercy. Trusting the judge to do that includes trusting her to decide what facts are relevant to the defendant’s sentence, even when a jury may have rejected some charges.

There will always be individual cases where some think a judge blew it, where a sentence appears too harsh (or too lenient). That has always been true and is unavoidable – judges are human. And at bottom, this is McClinton’s real beef — he thinks his sentence, although well within legal limits, was too harsh. He is hardly the first defendant to feel that way. The sentencing transparency required by the Guidelines gives him and other defendants the ability to dress up complaints about their sentence as an argument that the judge somehow violated the rules. But those arguments don’t hold water.

Creating rules to ban the use of acquitted conduct at sentencing would improperly tie the hands of all judges in all such cases. It would require judges to ignore facts right in front of them that are directly relevant to determining the appropriate sentence. It would result in greater sentencing disparity and in sentences that do not truly reflect the totality of a defendant’s conduct.

In the movement for sentencing fairness and equity, that would be a step backward.