Tag Archives: relevant conduct

McClinton Redux at Supreme Court – Update for February 17, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

IS TODAY THE DAY FOR ACQUITTED CONDUCT REVIEW?

relist230123At its last Friday morning conference on January 21st, the Supreme Court Justices against “relisted” McClinton v. United States rather than decided to review the 7th Circuit decision. The Justices take another whack at it today at the high court’s first certiorari conference in four weeks.

McClinton raises the issue of whether a court can take into account conduct of which a defendant is acquitted by a jury when it sentences the defendant. The Guidelines permit it, although one of the draft amendments proposed a month ago, a change to USSG § 1B1.3 (relevant conduct), proposes to add a provision that holds “related conduct” not to include acquitted conduct.

hammertime200818The McClinton case would go beyond a Guidelines amendment, however, and expressly find the practice of relying on acquitted conduct to be a violation of the 6th Amendment’s requirement that juries, not judges, find facts.  In McClinton, the defendant was hammered at sentencing for a bank robbery in which a death occurred, despite being found not guilty of murder.  His sentence was upheld by a 7th Circuit panel that felt itself bound by the 1997 Supreme Court decision in United States v. Watts.

Even so, in his majority opinion 7th Circuit Judge Frank Easterbrook, a prominent conservative jurist, all but begged the Supreme Court to take up McClinton’s case. “Despite th[e] clear precedent [of Watts], McClinton’s contention is not frivolous,” he wrote for the three-judge panel. “It preserves for Supreme Court review an argument that has garnered increasing support among many circuit court judges and Supreme Court justices, who in dissenting and concurring opinions, have questioned the fairness and constitutionality of allowing courts to factor acquitted conduct into sentencing calculations.”

foodfight230217The fact that McClinton and four similar cases have been relisted by the Supreme Court four times suggests that there is sentiment among some Justices to take up the issue and strident opposition from others to leave Watts alone.

Any petition for certiorari granted from this point through June will be argued next term, beginning in October 2023.

New Republic, When You’re Sentenced for a Crime That Even a Jury Agrees You Didn’t Commit (February 1, 2023)

Sentencing Guidelines for United States Courts, 88 FR 7180, (February 2, 2023)

United States v. McClinton, 23 F.4th 732 (7th Cir. 2022)

McClinton v. United States, Case 21-1557 (petition for certiorari pending)

– Thomas L. Root

Saying It Doesn’t Make It So – Update for March 8, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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I DIDN’T MEAN IT LIKE THAT

fineprint180308Anyone who every entered a guilty plea (like 97% of federal prisoners) knows that at the change-of-plea hearing and in the plea agreement, the defendant signs off on a lot of fine print. Most of it goes by in a blur, and means little until much later, when the court and government beat the inmate over the head with “admissions” he made in writing and on the record.

Last week, the 7th Circuit suggested there were limits to holding a defendant to everything he or she said at the change-of-plea. Vance White pled guilty to a white-collar conspiracy. His plea agreement said, “beginning no later than in or around the fall of 2009 and continuing until at least in or around the summer of 2013…” Vance and his buddies had run a scheme to rip off merchants with bad checks. The only problem was that Vance had been locked up for most of the period, being actually free for only about a year of the 4-year conspiracy.

The mistake made a big difference in his Guidelines sentencing range, but the government was unapologetic. The AUSA argued that the truth didn’t matter, because Vance had admitted to all of the conspiracy involvement in his plea agreement. One presumes that if Vance had admitted to having assassinated President Kennedy, kidnapping the Lindbergh baby and masterminding 9/11, the government would have said that must be so, too.

lindbergh180308Last week, the 7th Circuit decided that common sense should prevail. “As a general rule,” the Circuit said, “the government must show an aggravating offense characteristic under the Guidelines by a preponderance of the evidence, and this rule applies to the loss amount in a fraud offense… White’s guilty plea and his admission in the plea agreement are insufficient because they are too ambiguous on the key point. A plea agreement and admissions in a guilty plea hearing may of course establish a factual foundation for sentencing. The question here is just what White admitted. Our broad holdings about the evidentiary force of admissions in a plea agreement do not hold that a general admission in a plea agreement to a conspiracy or scheme spanning a certain time conclusively establishes individual participation during that entire time… White’s admission… is no better than a plea to an indictment — which admits only the essential elements of the offense. The beginning and end dates of a scheme are not essential elements.”

United States v. White, Case No. 17-1131 (7th Cir. Mar. 2, 2018)

– Thomas L. Root

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