US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton’s case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge’s determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday’s SCOTUS conference.  I was a bit worried when last week’s SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court’s decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

• “Acquitted Conduct Should Not Be Considered At Sentencing”
• A reminder of why “acquitted conduct” sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: “I think acquitted conduct should be barred from the guidelines calculation.”
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• “Acquitted. Then Sentenced.”
• NJ Supreme Court holds, as a matter of state constitutional law, that “fundamental fairness” precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, “Acquitted-conduct sentencing and ‘offended observer’ standing.”