Does new unanimous McElrath ruling mean anything for acquitted conduct sentencing?

As noted in this prior post, the Supreme Court today handed down a short opinion in McElrath v. Georgia, No. 22-721 (S. Ct. Feb 21, 2024) (available here), that ruled in favor of an acquitted defendant in a quirky double jeopardy case.  Especially because the US Sentencing Commission is currently taking commment on possible guideline amendments concerning the consideration of acquitted conduct at federal sentencing, I have been wondering if the McElrath might say something that could mean something for on-going acquitted conduct sentencing debates. 

After now reading the Court’s opinion in McElrath opinion a few times, I am inclined to conclude that there is not much “there there” to directly inform debates over acquitted conduct sentencing.  Here are a few passages from the McElrath opinion that seem to discuss the import and impact of acquittals most broadly:

Once rendered, a jury’s verdict of acquittal is inviolate.  We have described this principle — “that ‘[a] verdict of acquittal . . . could not be reviewed, on error or otherwise’” — as “[p]erhaps the most fundamental rule in the history of double jeopardy jurisprudence.” Martin Linen, 430 U.S., at 571.  This bright-line rule exists to preserve the jury’s “overriding responsibility . . . to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction.” Id., at 572….

Once there has been an acquittal, our cases prohibit any speculation about the reasons for a jury’s verdict — even when there are specific jury findings that provide a factual basis for such speculation — “because it is impossible for a court to be certain about the ground for the verdict without improperly delving into the jurors’ deliberations.” Smith, 599 U.S., at 252–253.  We simply cannot know why the jury in McElrath’s case acted as it did, and the Double Jeopardy Clause forbids us to guess.  “To conclude otherwise would impermissibly authorize judges to usurp the jury right.” Id., at 252.

Drawing on language in these passages, one could complain that acquitted conduct sentencing undermines the jury’s constitutional role standing “between the accused and a potentially arbitrary or abusive Government” and serves to “impermissibly authorize judges to usurp the jury right.”  However, elsewhere in the McElrath opinion, the Court stresses that the Double Jeopary Clause “focuses on prohibitions against multiple trials” and “is a bar to a subsequent prosecution for the same offence.”  The consideration of acquitted conduct at sentencing on a distinct count of conviction does not itself involve multiple trials or a subsequent prosecution.

In other words, the short McElrath opinion has a little bit of notable dicta that does not really directly inform the acquitted conduct debate.  Critically, though, while the US Sentencing Commission necessarily must be attentive to constitutional doctrines in formulating any new guideline rules, it also has broad authority and a fundamental obligation to advance sentencing rules that comprise good policy as well as being constitutionally sound.  SCOTUS in McElrath and other constitutional cases sets forth a constitutional floor, with the USSC in developing guideline amendments can and should aim higher.