by Natalie Lalama*

The United States Supreme Court recently passed on deciding the constitutionality of the use of acquitted conduct in federal sentencing by denying certiorari in McClinton v. United States. The Court denied certiorari in deference to the United States Sentencing Commission, which has recently collected public comment on proposals to amend the practice of acquitted-conduct sentencing. This Contribution argues that the amendments put forward by the Sentencing Commission are insufficient to address the significant constitutional questions raised by acquitted-conduct sentencing because they do not address root causes of procedural unfairness. These amendments do not rectify the unfairness inherent in giving the government a second bite at the apple, increasing the trial penalty for defendants, or the stigma and bias defendants face in sentencing. Acquitted-conduct sentencing as a practice contravenes the Due Process Clause of the Fifth Amendment; therefore, the Supreme Court is much better situated to determine this pressing constitutional question. 

On June 30, 2023, the Supreme Court denied certiorari in the case of Dayonta McClinton v. United States,1 a case challenging the use of acquitted conduct2 in federal sentence as violative of a criminal defendant’s right under the Due Process Clause of the Fifth Amendment.3 In passing on the constitutionality of this practice, the Supreme Court has left individuals vulnerable to further impingements on some of the most foundational principles of our criminal legal system. However, current federal precedent supports the practice of acquitted-conduct sentencing.4 Without clear Supreme Court guidance on its constitutionality, this practice continues to threaten procedural safeguards to liberty.

In McClinton v. United States, Dayonta McClinton was sentenced to 228 months in prison,5 a sentence dramatically inflated on the basis of conduct for which he was not convicted. Mr. McClinton’s case proceeded to sentencing on a robbery conviction, for which his sentencing guidelines stood at 57–71 months.6 However, during the sentencing proceeding, the judge considered the acquitted charge of murder, on top of the convicted charge of robbery, to calculate a new guidelines range. Because the judge found Mr. McClinton guilty of murder by the much lower preponderance of the evidence standard, his guideline range was ratcheted up to 324 months to the possibility of life in prison (at least quadruple the sentence McClinton faced for robbery alone).7 The Seventh Circuit Panel that affirmed this sentence expressed concern about the constitutionality of this practice, but ultimately found that the weight of precedent compelled acceptance of acquitted-conduct sentencing, at least until the Supreme Court considered the issue.8

The Supreme Court’s denial of certiorari was due in large part to deference to the United States Sentencing Commission, which is currently considering proposals to amend acquitted-conduct sentencing in the Sentencing Guidelines.9 The Commission has opened for comment three proposals, including requiring a higher standard of proof for acquitted conduct, recommending downward departures where acquitted conduct creates unwarranted sentencing increases, or excluding acquitted conduct from the definition of “relevant conduct.”10

Despite the Sentencing Commission’s proposed amendments on this practice, it is nonetheless imperative that the Supreme Court itself address the issue. As this Contribution will discuss, the proffered amendments by the Sentencing Commission are not sufficient in themselves to safeguard the Due Process rights of criminal defendants. Moreover, the advisory nature of the sentencing guidelines means that even the most robust amendment to the guidelines will not guarantee that acquitted conduct will not be considered in some capacity during sentencing proceedings. “[M]ost district judges still give significant weight to the advisory Guidelines when imposing a sentence,”11 so any increase in sentences caused by acquitted conduct will likely impact the sentence meted out by the judge. By ruling with clarity and finality that acquitted-conduct sentencing does not pass constitutional muster, the Supreme Court can deliver unambiguous guidance on fair sentencing practice to lower courts and vindicate the procedural rights of criminal defendants.

In the denial of certiorari, Justice Sotomayor expressed significant concern about acquitted-conduct sentencing’s “procedural fairness and accuracy when the state gets a second bite at the apple.”12 The McClinton case was a dramatic example of increased sentences due to acquitted conduct, but the infringement on Due Process rights implicated in that case hold for myriad criminal defendants. For example, in the case of United States v. Bell, the defendant proceeded to sentencing on three charges of distributing approximately five grams of a controlled substance.13 During sentencing proceedings however, several acquitted charges were taken into account, and defendant Bell received a sentence 300% higher than the guidelines range for the crimes of conviction.14 Justice Millett’s concurrence in Bell stressed that “[e]ven our court, though bound by precedent, has acknowledged the unfairness inherent in that result.”15 The practice of acquitted-conduct sentencing has significant impacts on the period of incarceration individual criminal defendants receive, and raises serious Due Process concerns.

The Due Process Clause of the Fifth Amendment protects individuals from erroneous and wrongful deprivations of their liberty.16 In the criminal context, a critical function of the Due Process Clause is to provide procedural safeguards to shield individuals from a loss of liberty before a conviction is fairly and properly secured.17 The practice of considering acquitted conduct in a sentencing proceeding is at odds with some of the most foundational concepts of the criminal legal system, namely the presumption of innocence.18 However, the presumption of innocence has historically only been applied to a charge itself in federal courts, and it has not been found to follow an individual to their sentencing proceeding. This is because the use of relevant conduct is viewed as fashioning an appropriate sentence for the individual, not as punishment for an additional bad act.19 This means that, if an individual is acquitted of one charge but proceeding to sentencing on at least one charge of conviction, they can still face a vastly increased sentence based on the conduct of the acquitted charge. Resultantly, individuals who have been acquitted on some counts but convicted of others are in the unique position of still potentially being punished for crimes that they were not found to have committed. Lengthier period of incarceration for conduct the jury did not convict on violates the Due Process Clause, as individuals are facing harsher deprivations of liberty without the requisite safeguards present in a jury trial, namely heightened standards of proof and the presumption of innocence.

Despite the paradoxical nature of this practice, many lower federal courts that have considered the issue have found that Due Process does not provide protection against acquitted-conduct sentencing.20 Much of the precedent supporting the practice of acquitted-conduct sentencing stems from the Supreme Court case United States v. Watts.21 This case sanctioned the consideration of acquitted conduct in federal sentencing, but its precedential value has been overstated. In actuality, Watts cabined the question of acquitted conduct very narrowly to whether this practice violated the Fifth Amendment protection from Double Jeopardy,22 which protects an individual from being prosecuted twice on an identical charge.23 The Watts case did not raise or resolve questions of Due Process, which concerns the procedural and substantive rights of individuals facing criminal prosecution.24 However, Watts has been inaptly relied on to shield the practice from any due process legal challenges. Notably, the Court in Watts expressed concern that conduct outside of the crime of conviction could raise other constitutional questions.25 Where the relevant acquitted conduct creates a dramatic increase in the sentence, the Watts Court left open the possibility that a higher factfinding standard than preponderance of the evidence should be utilized.26 As was the case in McClinton, acquitted-conduct sentencing can result in a much higher guidelines range, prompting serious Fifth Amendment concerns.27 Because of the divergence of opinion in the interpretation of Watts, the Supreme Court is best situated to take up the issue and vindicate rights owed under the Due Process Clause.

On first glance, the Sentencing Commission’s proposals may seem sufficient to resolve the open question in Watts. Namely, its proposal requiring a heightened standard of clear and convincing evidence in order for acquitted conduct to be considered in calculating a guidelines range appears, upon first glance, to fully address the concerns raised by the Watts Court.28 However, this proposal is insufficient because it fails to require a finding of beyond a reasonable doubt. Though Due Process does not specifically require the reasonable doubt standard to secure punishment for a crime, its ubiquity in criminal proceedings does “reflect a profound judgement about the way in which law should be enforced.”29 In her dissent in United States v. Bell, Judge Millett emphasized the pivotal role this heightened standard of proof plays in safeguarding the liberty interest guaranteed by the Due Process Clause.30 “In other words, proof beyond a reasonable doubt is what we demand from the government as an indispensable precondition to depriving an individual of liberty for the alleged conduct.31 Anything less than beyond a reasonable doubt remains in tension with critical procedural protections guaranteed by the Due Process Clause.

Additionally, utilizing a lower standard of proof in sentencing, even if only a slightly lower standard, requires that a criminal defendant work to formulate a trial strategy balancing two standards of proof simultaneously. That individual must mind both the standard of proof of conviction, and the lower standard that might be utilized at sentencing if the jury returns acquittals on any charge. This dual standard puts the guilt and penalty phase in tension and leaves the individual “between a proverbial rock and a hard place.”32 This has the effect of emphasizing the power imbalance between individual criminal defendants and the machinery of the government prosecutors in the case, which can deter individuals from the decision to fight the charge against them, as “balancing dissimilar audiences and standards compounds the already daunting challenges of defending a federal criminal case.”33 Unless there is a guarantee of acquittal on every charge, a criminal defendant must make extremely difficult decisions in trial preparation, or to forgo trial altogether.

Ultimately, even the clear and convincing evidence standard puts an individual at a disadvantage in sentencing proceedings. Allowing the sentencing judge to find this conduct on their own, utilizing a lower standard of proof than the jury, permits the prosecution to secure punishment for a crime for which they did not secure a conviction. As in McClinton, this means that even when the prosecution fails to convict for a wholly separate offense, they get a second chance to argue guilt before the sentencing judge. This “proverbial ‘second bite at the apple’” gives yet another opportunity for the government to succeed, while “the defendant, the jury system, the Constitution—loses.”34 The inability of the heightened standard of proof to rectify a heightened trial penalty and disparity of opportunity for the government highlights the importance of the Supreme Court taking on acquitted-conduct sentencing.

The second proposal from the United States Sentencing Commission suggests that judges consider a downward departure of the guidelines range where acquitted conduct causes an “extremely disproportionate” increase in the sentence.35 This proposal suffers the same shortcomings of giving the government another opportunity of conviction, but also introduces an additional obstacle of giving sentencing judges significant deference in applying the proposal. Critically, the advisory nature of the guidelines has shown to leave ample room for implicit, or even explicit, biases to infect the decisions of sentencing judges.36 A recent study by the Commission itself found that between 2012–2016, sentences for Black men were approximately 19.1% higher than those of white men.37 Even more striking, Black men were 21.2% less likely to be granted a downward departure in their sentence than their white counterparts where the prosecution did not affirmatively sponsor that departure.38 “[A]s a result, acquitted conduct may be used as an unintended proxy for racial disparagement,”39 further impinging on constitutional guarantees that an individual will not lose their liberty without due process. The Sentencing Commission’s vague and deferential language will not curb these racial disparities, and Black defendants in particular will likely continue to face increased sentences due to acquitted conduct.

These statistics also shed light on why the Sentencing Commission’s first proposal, disallowing the consideration of acquitted conduct as relevant conduct, will also not fully address sentencing disparities and preserve constitutional rights to due process. Even if excluded from the definition of relevant conduct, the proposed amendments note that acquitted conduct could still permissibly be used to deny downward departures from the guidelines range.40 Because these departures are more often reserved for white defendants, continuing to allow a sentencing judge to view and consider acquitted conduct will not curb the racial bias that can infect sentencing practices.

Even beyond the disparity of an increased sentence, a judge’s determination that an individual in fact did commit the acquitted charge changes “the quantity and quality of the stigma he faces.”41 The myriad consequences of consideration of acquitted conduct in sentencing are severe, and resultantly there should be additional procedural protections, not fewer. In a sentencing proceeding, the judge is the finder of fact rather than the jury. Additionally, unlike the beyond a reasonable doubt standard the jury uses, the judge will rely on the much laxer preponderance of the evidence, or more likely than not, standard. In Mathews v. Eldridge, the Supreme Court emphasized that “procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions.”42 That risk is ever-present in the context of acquitted-conduct sentencing, where prosecutors are presenting a case anew, before a new audience that will utilize a lower standard of proof. This risk of an unwarranted deprivation of liberty should compel the Supreme Court to safeguard that liberty under the Due Process Clause by ruling on acquitted conduct sentencing itself.

There is both Supreme Court and lower court support for the practice of acquitted-conduct sentencing,43 but this practice has proven untenable in light of the constitutional due process protections owed to individual defendants.44 As the Supreme Court declared in Speiser v. Randall, a criminal defendant’s interest in his liberty is “an interest of transcending value”45 and it is protected by requiring the prosecution to prove their case against him. However, protection of such a value rings hollow when the prosecution gets a second bite at the apple, especially when the acquitted conduct threatens a dramatically heightened sentence.

The United States Sentencing Commission has recently accepted public comment on its proposed amendments, and these comments will likely provide a wellspring of valuable information on this practice. However, the Sentencing Commission’s proposals as they currently exist are not sufficient to fully protect what is at stake. To preserve the due process rights of individuals in sentencing proceedings, the Supreme Court should act expeditiously to evaluate the practice of acquitted-conduct sentencing.

* Natalie Lalama is a J.D. Candidate (2024) at New York University School of Law. This Contribution is a commentary on the problem at the 2023 Herbert  Wechsler National Criminal Law Moot Court Competition, hosted by University of Buffalo School of Law. The problem presented by the competition was the actual case of McClinton v. United States, questioning whether the consideration of acquitted conduct in federal sentencing violated the Fifth Amendment Due Process Clause.

1. See generally McClinton v. United States, 143 S. Ct. 2400 (2023).

2. Throughout this piece, the term “acquitted-conduct sentencing” will be used to describe the procedure in which, after being acquitted of at least one count but convicted of at least one count, the sentencing judge considers the acquitted conduct to sentence the defendant on the crime of conviction. In sentencing proceedings, the judge utilizes a preponderance of the evidence standard, unlike the beyond a reasonable doubt standard required for convictions.

3. McClinton also examined acquitted-conduct sentencing under the Sixth Amendment right to a trial by jury, 143 S. Ct. at 2402, but this Contribution will only address the Due Process Clause question.

4. See, e.g., United States v. Mercado, 474 F.3d 654, 657 (9th Cir. 2007) (“We are, therefore, satisfied . . . that the district court could constitutionally consider the acquitted conduct. In that we are not alone.”).

5. 23 F.4th 732, 734–35 (7th Cir. 2022), cert. denied, 143 S. Ct. 2400 (2023).

6. Petition for Writ of Certiorari at 7–8, McClinton, 143 S. Ct. 2400 (No. 21-1557).

7. Id. at 8.

8. McClinton, 23 F.4th at 735 (“It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court Justices who, in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”).

9. McClinton, 143 S. Ct. at 2403 (Sotomayor, J., respecting the denial of certiorari).

10. Sentencing Guidelines for United States Courts, 88 Fed. Reg. 89142, 89150–52 (proposed Dec. 26, 2023) (open for public comment until Feb. 22, 2024).

11. United States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008).

12. McClinton, 143 S. Ct. at 2402 (Sotomayor, J., respecting the denial of certiorari).

13. 808 F.3d 926, 929 (D.C. Cir. 2015) (Millet, J., concurring).

14. Id.

15. Id. at 932.

16. U.S. Const. amend. V.

17. Brinegar v. United States, 338 U.S. 160, 174 (1949).

18. Cf. Coffin v. United States, 156 U.S. 432, 453 (1895) (“[T]hat there is a presumption of innocence in favor of the accused is the undoubted law . . . and its enforcement lies at the foundation of the administration of our criminal law.”).

19. See, e.g., United States v. Duncan, 400 F.3d 1297, 1304 (11th Cir. 2005).

20. See, e.g., United States v. Ibanga, 271 Fed. App’x 298, 300 (4th Cir. 2008) (finding acquitted conduct can be considered in sentencing procedures under current federal law).

21. 519 U.S. 148 (1997).

22. Id. at 154–55.

23. U.S. Const. amend. V.

24. Id.

25. Watts, 519 U.S. at 156.

26. Id.

27. United States v. Canania, 532 F.3d 764, 777 (8th Cir. 2008) (Bright, J., concurring).

28. Sentencing Guidelines for United States Courts, 88 Fed. Reg. at 89151.

29. In re Winship, 397 U.S. 358, 361–62 (quoting Duncan v. Louisiana, 391 U.S. 145, 155 (1968)).

30. 808 F.3d at 929 (Millet, J., concurring).

31. Id. at 930.

32. Id. at 932.

33. Brief for Nat’l Assoc. of Federal Defenders et al. as Amici Curiae Supporting Petitioner at 12, McClinton v. United States, 143 S. Ct. 2400 (2023) (No. 21-1557).

34. Canania, 532 F.3d at 776 (Bright, J., concurring).

35. Sentencing Guidelines for United States Courts, 88 Fed. Reg. at 89150–51.

36. See generally U.S. Sentencing Comm’n, Demographic Differences in Sentencing: An Update to the 2012 Booker Report (2017),

37. Id. at 2.

38. Id.

39. Orhun Hakan Yalinçak, Critical Analysis of Acquitted Conduct Sentencing in the U.S.: “Kafka-Esque,” “Repugnant,” “Uniquely Malevolent” and “Pernicious”?, 54 Santa Clara L. Rev. 675, 714 (2014).

40. Sentencing Guidelines for United States Courts, 88 Fed. Reg. at 89150.

41. United States v. Faust, 456 F.3d 1342, 1350 (2006) (Barkett, J., concurring).

42. 424 U.S. 319, 344 (1976).

43. See generally Watts, 519 U.S. at 156.

44. Bell, 808 F.3d at 928 (Kavanaugh, J., concurring).

45. 357 U.S. 513, 525 (1958).