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Acquitted-Conduct Sentencing: A Quagmire Neither the Supreme Court Nor the U.S. Sentencing Commission Can Continue to Avoid
It would be a surprise to many, but it has been common knowledge to criminal practitioners for years, that a criminal defendant's sentence for a crime which they have been convicted can be increased based on consideration of conduct that the jury acquitted. As some have observed, this outcome can make a partial acquittal in federal court into a pyrrhic victory as the defendant's sentence is impacted by the same behavior that the jury concluded was not proved beyond a reasonable doubt. And not just impacted on the margin — a defendant's sentence can be greatly increased.
This is true in both white-collar cases and in cases involving drug dealing or crimes of violence. Take the case of Dayonta McClinton, who was convicted by a jury of being one of a group that robbed an Indianapolis CVS pharmacy in 2015. See, McClinton v. United States, petition for cert. pending, No. 21-1557 (filed June 10, 2022). The jury acquitted McClinton of even more serious conduct — the shooting of one of the other robbers in the back of the head at point-blank range. Nonetheless, the sentencing court found, using a preponderance of the evidence standard, that McClinton did commit the homicide. As a result, the sentencing court more than tripled McClinton's Sentencing Guidelines Range, from 57-71 months, based on the robbery, to a sentence of 228 months, holding him responsible for the homicide.
State of Acquitted-Conduct Sentencing Jurisprudence
Where does the practice of using acquitted conduct in sentencing come from? Even long before the Sentencing Guidelines were conceived and enacted, the Supreme Court has reiterated that a judge is entitled to consider "the fullest information possible concerning the defendant's life and characteristics" in criminal sentencing. Williams v. New York, 337 U.S. 241, 247 (1949). This is so even for "past criminal behavior which did not result in a conviction." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 573 n.19 (1996). Congress codified the general principle that sentencing courts have broad discretion to consider various kinds of information when sentencing a criminal defendant: "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S.C. §3661.
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