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Sentencing Law and Policy
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After US Sentencing Commission deferred on issue, Supreme Court back to conferencing acquitted conduct cases

By Douglas Berman

Regular readers surely recall prior posts about the McClinton case still before the US Supreme Court raising issues about the use of acquitted conduct at sentencing in which I filed an amicus brief in support of petitioner Dayonta McClinton.  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, the Justices considered the McClinton case (as well as a number of others raising acquitted conduct issues) at their conference in January 2023.  Upon initial review, these cases were all “relisted,” which is usually a sign that at least one Justice is interested in taking a closer look at the case.  But then, interestingly, these cases did not appear in subsequent SCOTUS order lists nor did the docket sheet show that the case was rescheduled for future conferences.  A number of folks speculated, myself included, that the announcement by the US Sentencing Commission to consider an amendment to the federal sentencing guidelines on the acquitted conduct issue had led the Justices to put a hold on McClinton and the other acquitted conduct cases.

But, as reported here, last month the US Sentencing Commission ultimately decided not to advance any guideline amendments addressing the issue of acquitted conduct in this year’s amendment cycle.  This USSC decision served, in a sense, to punt this matter back to the Justices.  (The issues and possible work of SCOTUS and the USSC on acquitted conduct are not identical, but they do overlap in various possible ways.)  Excitingly, SCOTUS seems to be back at it as the McClinton docket sheet now shows this case will be reviewed again next week by the Justices at their May 11 conference.

I still think the odds of a cert grant on this issue to be remote.  Stll, I think it important that SCOTUS indicate, one way or another, if it is inclined to review this important issue anew a quarter-century after its Watts ruling.  A host of new Fifth and Sixth Amendment jurisprudence raising questions about the practice of acquitted conduct sentencing enhancements could certainly justify review, but the Justices have been disinclined to revisit this issue for quite some time. 

A few recent of many, many prior related posts: