Notable (and timely) concurrence assailing uncharged “relevant conduct” federal sentencing

A helpful colleague made sure I did not miss a notable opinion in a Seventh Circuit case handed down late last week.  The opinion for the court in US v. Brasher, No. 23-1180 (7th Cir. June 28, 2024) (available here), succinctly notes the key issues and disposition of the case:

This appeal asks us to hold that some of Bernell Brasher’s past conduct bore too attenuated a link to his offense of conviction to qualify as relevant conduct at sentencing. But Brasher never raised that issue below, so we review here for plain error. Finding no such error, we affirm.

What makes this case blogworthy in an extended concurring opinion by Judge Jackson-Akiwumi which starts and ends this way:

I join the majority opinion because it applies our circuit’s current law on relevant conduct to Bernell Brasher’s case, but I write separately to highlight what I view as an unfortunate devolution in our circuit’s handling of relevant conduct altogether. By watering down our standard for what district courts must do to ensure uncharged conduct is sufficiently related to conduct for which a defendant is convicted, we further increase the power of the government and the courts to punish individuals for conduct for which the government did not attain an indictment or conviction. Sentencing based on relevant conduct is a constitutionally dubious proposition on its own, but our circuit’s weakened standard only exacerbates the risk of a constitutional violation. It’s time we correct course….

In closing, I join the chorus of critics who have explained that sentencing a defendant based on uncharged conduct is suspect as both a constitutional and policy matter.  The United States Sentencing Commission has the authority to address these issues, and it should.  Until then, our circuit should ensure that our rules and standards are robust enough to prevent constitutional violations wherever possible. The Duarte rule did that. We should find our way back to it.

I call this opinion timely for two reasons: (1) the US Sentencing Commission is actively accepting comments on its priorities for the coming year, and Judge Jackson-Akiwumi’s opinion astutely suggests uncharged conduct sentencing merits attention, and (2) Donald Trump is scheduled to be sentenced in NY state court in 10 days, and I keep thinking about what the prosecutor might argue, and what the sentencing judge might consider, to be proper aggravating uncharged conduct at that historic sentencing.