Advice to SCOTUS: Disallow Consideration of Conduct Underlying Acquitted Charges at Sentencing

Blog Post | 110 KY. L. J. ONLINE | November 16, 2021

Advice to SCOTUS: Disallow Consideration of Conduct Underlying Acquitted Charges at Sentencing

By: Sanders Platt, Staff Editor, Vol. 110

Imagine this: you are the defendant in a criminal case. You are facing eight charges. After a lengthy trial, the jury finds you guilty of three charges but acquits you of the remaining five. At your sentencing hearing a few months later, the judge nevertheless deviates from the probation officer’s recommended sentence, finding that the conduct underlying the charges of which you were acquitted merits a higher sentence. At first glance, does this practice seem fair, permissible, or in accordance with lay understandings of the role of the jury?

All twelve federal circuits have held that a judge may consider conduct underlying an acquitted charge at sentencing.[1] This, of course, does not mean that a judge must do so. However, all that a prosecutor must do to allow a judge to consider conduct underlying acquitted charges in determining your sentence is prove such conduct by a preponderance of the evidence;[2] a far lower standard than that imposed on the jury, who must determine your guilt beyond a reasonable doubt before returning a verdict against you.[3]

What exactly does the practice of considering conduct underlying acquitted crimes at sentencing look like? In United States v. Bertram, the defendants were charged with ninety-nine counts of healthcare fraud, as well as conspiracy to commit healthcare fraud.[4] A jury found the defendants guilty of seventeen counts but acquitted them of the other eighty-three.[5] At sentencing, there was a dispute over the amount of “intended or actual economic loss”[6] of the scheme; the prosecution urged the sentencing judge to find that the intended loss was best understood as the total amount of bills submitted for reimbursement from “health care benefits programs for all ninety-nine counts of fraud listed in the indictment.”[7] The defense contended that the proper amount of intended loss should be calculated “based only on the seventeen counts for which [the defendants] were convicted by a jury.”[8] While the judge ultimately agreed with the defense’s calculation,[9] had he instead accepted the prosecution’s calculation of intended loss, the defendants’ ranges of sentences would have been between 575-1050% higher than they ultimately were.[10]

Returning to the matter at hand, the Court in Watts based its holding, in part, on the notion that consideration of acquitted conduct functions as a sentencing enhancement rather than as “punishment for a criminal charge for which [the defendant] was acquitted.”[11] But what happens when the conduct underlying the acquitted charge also makes out an essential element of that charge? Would that not seem to be punishment for an acquitted charge in the guise of a sentencing enhancement?

It is also worth noting that the Sentencing Guidelines, which directly provide that there is no limit placed on the consideration of “the background, character, and conduct of a convicted person” for “the purpose of imposing an appropriate sentence,”[12] were then mandatory in application. Not until 2005 did the Court hold that mandatory application of the Guidelines was unconstitutional as a violation of the Sixth Amendment,[13] thereby rendering the Guidelines advisory in nature.

Even before Booker was decided, however, the Court fully endorsed the view that, other than the fact of a prior conviction, “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”[14]

It seems, then, that the holdings of Watts and Apprendi tangentially run afoul of one another. Sentencing enhancements of the kind at issue here are based on the presence of facts determined by a judge, and the judge determines those facts pursuant to the Sentencing Guidelines. Should the judge find facts (by a preponderance of the evidence) that increase the range of penalties to which the defendant is exposed, this would seem permissible under Watts. But Apprendi dictates that facts that increase the range of penalties must be established beyond a reasonable doubt. Yet Watts both remains good law and is followed by all twelve circuits.[15]

Given the change in the nature of the Sentencing Guidelines and arguable conflict between Watts and later cases, perhaps the Court ought to reconsider whether consideration of conduct underlying acquitted charges at sentencing is permissible. Indeed, three current Supreme Court Justices have publicly expressed skepticism of the practice;[16] what the remaining members of the Court think is less clear.

[1] See United States v. Gobbi, 471 F.3d 302, 313–14 (1st Cir. 2006); United States v. Rodriguez-Gonzalez, 899 F.2d 177, 182 (2d Cir. 1990); United States v. Ciavarella, 716 F.3d 705, 735–36 (3d Cir. 2013); United States v. Grubbs, 585 F.3d 793, 798–99 (4th Cir. 2009); United States v. Juarez-Ortega, 866 F.2d 747, 748–49 (5th Cir. 1989); United States v. White, 551 F.3d 381, 383–84 (6th Cir. 2008); United States v. Waltower, 643 F.3d 572, 575–78 (7th Cir. 2011); United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir. 2007); United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007); United States v. Magallanez, 408 F.3d 672, 684–85 (10th Cir. 2005); United States v. Faust, 456 F.3d 1342, 1347 (11th Cir. 2006); United States v. Settles, 530 F.3d 920, 923 (D.C. Cir. 2008).

[2] See United States v. Watts, 519 U.S. 148, 157 (1997). 

[3] In re Winship, 397 U.S. 358, 364 (1970).

[4] United States v. Bertram, 2018 WL 993880, at *1 (E.D. Ky. Feb. 21, 2018) (Van Tatenhove, J.).

[5] Id.

[6] “Intended or actual economic loss” functions as a factor that adjusts the range of sentences applicable to convicted defendants.  

[7] Id. at *3-*4.

[8] Id. at *4.

[9] Id. at *3.

[10] See id. at *4.

[11] See Watts, 519 U.S. at 154–55.

[12] 18 U.S.C. § 3661.

[13] See United States v. Booker, 543 U.S. 220, 245 (2005).

[14] Apprendi v. New Jersey, 530 U.S. 466, 490 (2003).

[15] See cases cited supra notes 1–2.

[16] See United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10th Cir. 2014) (Gorsuch, J.) (noting that, while judges find facts at sentencing, this practice “rests in part on a questionable foundation. It assumes that a district judge may either decrease or increase a defendant’s sentence . . . based on facts the judge finds without the aid of a jury or the defendant’s consent. It is far from certain whether the Constitution allows [this practice].” (emphasis added)); United States v. Bell, No. 08-3037 (D.C. Cir. 2015) (order denying petition for rehearing en banc) (Kavanaugh, J.) (“Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial.”); Jones v. United States, 574 U.S. ­­­___, ___ (2014) (Scalia, Thomas, & Ginsburg, JJ., dissenting in denial of certiorari) (“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 be either admitted by the defendant or found by the jury. It may not be found by a judge.” (emphasis in original) (citations omitted)).