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1 1 (September 8, 2023)

handle is hein.crs/govemtz0001 and id is 1 raw text is: Congressional_______ Research Service s The Use of Acquitted Conduct to Enhance Federal Sentences September 8, 2023 Consider a defendant who is a part of a group that robs a pharmacy. In a dispute about how to divide up the proceeds, one of the robbers kills another in the group. The defendant is charged both with the robbery and the killing of his confederate. The jury convicts the defendant only of the robbery and acquits the defendant of murder. That is, the jury necessarily finds that the government proved beyond a reasonable doubt that the defendant robbed the pharmacy, but the government failed to prove beyond a reasonable doubt that the defendant committed murder. The judge sentences the defendant for the robbery, which carries a sentence of five to six years in prison, and also finds by a preponderance of the evidence that the defendant is responsible for the confederate's death, enhancing the defendant's sentence to nineteen years in prison. These are the facts of McClinton v. United States. Last term, the Supreme Court was asked to hear this case and resolve whether enhancing a sentence on the basis of acquitted conduct-the conduct underlying an alleged criminal offense that the jury has acquitted the defendant of committing-is consistent with the Due Process Clause of the Fifth Amendment and the right to a jury trial under the Sixth Amendment. The Supreme Court denied review, however, with several Justices explaining that they were waiting for the U.S. Sentencing Commission to act. The Commission is currently studying the use of acquitted conduct for purposes of the U.S. Sentencing Guidelines and has indicated that it intends to vote next year on corresponding changes to the Guidelines. Federal judges use these Guidelines as the starting point in identifying an appropriate sentence for a federal defendant. This Sidebar discusses acquitted conduct in the context of the Sentencing Commission. The Sidebar provides an overview of the Commission's preliminary and current approach to acquitted conduct and identifies some judicial commentary regarding the use of acquitted conduct in sentencing decisions. The Sidebar then turns to the Commission's initial proposed amendment to the Guidelines on acquitted conduct, the public comments on the amendment, and the Commission's decision to further study the issue for a future amendment cycle. The Sidebar concludes with some considerations for Congress. Congressional Research Service https://crsreports.congress.gov LSB11037 CRS Legal Sidebar Prepared for Members and Committees of Congress

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