McClinton v. United States

1 Cite as: 600 U. S. ____ (2023)
Statement of S
OTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
DAYONTA MCCLINTON v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 21–1557. Decided June 30, 2023
The petition for a writ of certiorari is denied.
Statement of J
USTICE SOTOMAYOR respecting the denial
of certiorari.
The prosecution in this case argued that Dayonta
McClinton, then 17 years old, shot and killed his friend in
a dispute over the proceeds of a pharmacy robbery. The
jury unanimously acquitted him of killing his friend and
convicted him only of robbing the pharmacy.
After that, however, something happened that might
strike the average person as quite strange. At McClinton’s
sentencing for the robbery conviction, the prosecution again
argued that McClinton had killed his friend. When the
judge agreed, this caused McClinton’s Sentencing Guide-
lines range to skyrocket. While the ultimate sentencing de-
cision is discretionary, “[t]he Guidelines are the framework
for sentencing and anchor the district court’s discretion.”
Molina-Martinez v. United States, 578 U. S. 189, 198–199
(2016) (internal quotation marks and alterations omitted).
McClinton’s Guidelines range had initially been approxi-
mately five to six years. Yet taking into account the killing,
the judge sentenced McClinton to 19 years in prison.
As many jurists have noted, the use of acquitted conduct
to increase a defendant’s Sentencing Guidelines range and
sentence
1
raises important questions that go to the fairness
and perceived fairness of the criminal justice system. See
Jones v. United States, 574 U. S. 948, 949–950 (2014)
(Scalia, J., joined by T
HOMAS and Ginsburg, JJ., dissenting
——————
1
For brevity, I will refer to this as “acquitted-conduct sentencing.”

2 M
CCLINTON v. UNITED STATES
Statement of S
OTOMAYOR, J.
from denial of certiorari); see also United States v. Bell, 808
F. 3d 926, 928 (CADC 2015) (Kavanaugh, J., concurring in
denial of reh’g en banc); United States v. Sabillon-Umana,
772 F. 3d 1328, 1331 (CA10 2014) (Gorsuch, J.); United
States v. Watts, 519 U. S. 148, 170 (1997) (Kennedy, J., dis-
senting).
2
These concerns arise partly from a tension between ac-
quitted-conduct sentencing and the jury’s historical role.
Juries are democratic institutions called upon to represent
the community as “a bulwark between the State and the
accused,” and their verdicts are the tools by which they do
so. Southern Union Co. v. United States, 567 U. S. 343, 350
(2012) (internal quotation marks omitted); see also Blakely
v. Washington, 542 U. S. 296, 305–306 (2004) (“Just as suf-
frage ensures the people’s ultimate control in the legislative
and executive branches, jury trial is meant to ensure their
control in the judiciary”). Consistent with this, juries were
historically able to use acquittals in various ways to limit
the State’s authority to punish, an ability that the Founders
prized. See Jones v. United States, 526 U. S. 227, 245–246
(1999). With an acquittal, the jury as representative of the
community has been asked by the State to authorize pun-
ishment for an alleged crime and has refused to do so.
——————
2
Many other state and federal judges have questioned the practice.
See also, e.g., State v. Melvin, 248 N. J. 321, 349–352, 258 A. 3d 1075,
1092–1094 (2021); People v. Beck, 504 Mich. 605, 625–629, 939 N. W. 2d
213, 224–227 (2019); State v. Marley, 321 N. C. 415, 424–425, 364 S. E.
2d 133, 138–139 (1988); State v. Cote, 129 N. H. 358, 375–376, 530 A. 2d
775, 785 (1987); Jefferson v. State, 256 Ga. 821, 827, 353 S. E. 2d 468,
474 (1987); United States v. Tapia, 2023 WL 2942922, *2, n. 2 (CA2, Apr.
14, 2023); United States v. Brown, 892 F. 3d 385, 408–409 (CADC 2018)
(Millett, J., concurring); United States v. White, 551 F. 3d 381, 391–397
(CA6 2008) (Merritt, J., dissenting); United States v. Canania, 532 F. 3d
764, 776–778 (CA8 2008) (Bright, J., concurring); United States v. Mer-
cado, 474 F. 3d 654, 658, 662–665 (CA9 2007) (Fletcher, J., dissenting);
United States v. Baylor, 97 F. 3d 542, 550–553 (CADC 1996) (Wald, J.,
concurring); United States v. Concepcion, 983 F. 2d 369, 395–396 (CA2
1992) (Newman, J., dissenting).

3 Cite as: 600 U. S. ____ (2023)
Statement of SOTOMAYOR, J.
This helps explain why acquittals have long been “ac-
corded special weight,” United States v. DiFrancesco, 449
U. S. 117, 129 (1980), distinguishing them from conduct
that was never charged and passed upon by a jury.
3
This
special weight includes traditionally treating acquittals as
inviolate, even if a judge is convinced that the jury was
“mistaken.” Id., at 130. In contrast, there appears to be
little record of acquitted-conduct sentencing before the
1970s. See C. Murray, Hard Cases Make Good Law: The
Intellectual History of Prior Acquittal Sentencing, 84 St.
John’s L. Rev. 1415, 1444, 1427–1437, 1450–1455 (2010)
(describing the role of federal statutes and especially the
Guidelines in the rise of acquitted-conduct sentencing).
4
The argument for acquitted-conduct sentencing is gener-
ally based on standards of proof. A sentencing judge makes
findings by a preponderance of the evidence, whereas a jury
applies the higher beyond-a-reasonable-doubt standard.
Because an acquittal could reflect a jury’s conclusion that
the evidence of guilt fell just short of the beyond-a-reasona-
ble-doubt standard, the argument goes, there is no conflict
with a judge making a contrary finding of guilt under a
lower evidentiary standard.
Yet there is a tension between this narrower conception
of an acquittal and the manner in which juries historically
used acquittals. See Jones, 526 U. S., at 245–246; see also
Blakely, 542 U. S., at 305–306 (jury trial “is no mere proce-
dural formality, but a fundamental reservation of power in
——————
3
The history and nature of acquittals distinguishes the narrow ques-
tion of acquitted-conduct sentencing from broader questions posed by
J
USTICE ALITO about the other kinds of facts judges may consider at sen-
tencing.
4
Many sentencing courts throughout history have thus gone without
acquitted conduct and various States have expressly limited such consid-
eration for decades. See Cote, 129 N. H., at 375–376, 530 A. 2d, at 785;
Jefferson, 256 Ga., at 827, 353 S. E. 2d, at 474; Marley, 321 N. C., at 424–
425, 364 S. E. 2d, at 138–139. This suggests that J
USTICE ALITO’s work-
ability concerns may not be as dire as he fears.

4 MCCLINTON v. UNITED STATES
Statement of S
OTOMAYOR, J.
our constitutional structure”). Further, an acquittal could
also reflect a jury’s conclusion that the State’s witnesses
were lying and that the defendant is innocent of the alleged
crime. In that case, it is questionable that a jury’s refusal
to authorize punishment is consistent with the judge giving
the defendant additional years in prison for the same al-
leged crime. The fact is that even though a jury’s specific
reasons for an acquittal will typically be unknown, the jury
has formally and finally determined that the defendant will
not be held criminally culpable for the conduct at issue. So
far as the criminal justice system is concerned, the defend-
ant “has been set free or judicially discharged from an ac-
cusation; released from a charge or suspicion of guilt.” State
v. Marley, 321 N. C. 415, 424, 364 S. E. 2d 133, 138 (1988)
(internal quotation marks and alterations omitted).
There are also concerns about procedural fairness and ac-
curacy when the State gets a second bite at the apple with
evidence that did not convince the jury coupled with a lower
standard of proof. Even defendants with strong cases may
understandably choose not to exercise their right to a jury
trial when they learn that even if they are acquitted, the
State can get another shot at sentencing.
Finally, acquitted-conduct sentencing also raises ques-
tions about the public’s perception that justice is being
done, a concern that is vital to the legitimacy of the criminal
justice system. Various jurists have observed that the
woman on the street would be quite taken aback to learn
about this practice. See, e.g., United States v. Canania, 532
F. 3d 764, 778 (CA8 2008) (Bright, J., concurring).
This is also true for jurors themselves. One juror, after
learning about acquitted-conduct sentencing, put it this
way: “‘We, the jury, all took our charge seriously. We vir-
tually gave up our private lives to devote our time to the
cause of justice . . . . What does it say to our contribution as
jurors when we see our verdicts, in my personal view, not

5 Cite as: 600 U. S. ____ (2023)
Statement of S
OTOMAYOR, J.
given their proper weight. It appears to me that these de-
fendants are being sentenced not on the charges for which
they have been found guilty but on the charges for which
the District Attorney’s office would have liked them to have
been found guilty.’” Id., at 778, n. 4. In this Nation, juries
have historically been venerated as “a free school . . . to
which each juror comes to learn about his rights.” 1 A. de
Tocqueville, Democracy in America 316 (A. Goldhammer
transl. 2004). One worries about the lesson jurors learn
from acquitted-conduct sentencing.
The Court’s denial of certiorari today should not be mis-
interpreted.
5
The Sentencing Commission, which is respon-
sible for the Sentencing Guidelines, has announced that it
will resolve questions around acquitted-conduct sentencing
in the coming year. If the Commission does not act expedi-
tiously or chooses not to act, however, this Court may need
to take up the constitutional issues presented.
——————
5
The Court today will deny certiorari in a series of similar cases in-
volving acquitted-conduct sentencing, and the issues discussed here ap-
ply to those cases as well.

1 Cite as: 600 U. S. ____ (2023)
Statement of K
AVANAUGH, J.
SUPREME COURT OF THE UNITED STATES
DAYONTA MCCLINTON v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 21–1557. Decided June 30, 2023
Statement of JUSTICE KAVANAUGH, with whom JUSTICE
GORSUCH and JUSTICE BARRETT join, respecting the denial
of certiorari.
As J
USTICE SOTOMAYOR explains, the Court’s denial of
certiorari today should not be misinterpreted. The use of
acquitted conduct to alter a defendant’s Sentencing
Guidelines range raises important questions. But the
Sentencing Commission is currently considering the issue.
It is appropriate for this Court to wait for the Sentencing
Commission’s determination before the Court decides
whether to grant certiorari in a case involving the use of
acquitted conduct.

1 Cite as: 600 U. S. ____ (2023)
A
LITO, J., concurring
SUPREME COURT OF THE UNITED STATES
DAYONTA MCCLINTON v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 21–1557. Decided June 30, 2023
JUSTICE ALITO, concurring in the denial of certiorari.
This Court does not lobby government entities to make
preferred policy decisions, and no one should misinterpret
my colleagues’ statements as an effort to persuade the Sen-
tencing Commission to alter its longstanding decision that
acquitted conduct may be taken into account at sentencing.
Even if the Commission eventually decides on policy
grounds that such conduct should not be considered in fed-
eral sentencing proceedings, that decision will not affect
state courts, and therefore the constitutional issue will re-
main.
The fundamental argument advanced in support of the
proposition that consideration of such conduct at sentenc-
ing violates the Sixth Amendment right to a jury trial relies
on what, I submit, is a flawed understanding of the mean-
ing of that right when the Amendment was adopted,
namely, that a defendant’s sentence may be based only on
facts that a jury has found beyond a reasonable doubt. As
scholars have noted, there is strong evidence that this was
not the understanding of the jury-trial right in 1791. See,
e.g., S. Bibas, Judicial Fact-Finding and Sentence Enhance-
ments in a World of Guilty Pleas, 110 Yale L. J. 1097, 1123–
1132 (2001); R. Little & T. Chen, The Lost History of Ap-
prendi and the Blakely Petition for Rehearing, 17 Fed. Sen-
tencing Rep. 69 (2004). In that era, federal criminal stat-
utes often gave sentencing judges the authority to impose
any sentence that fell within a prescribed range, and in ex-
ercising that authority, judges necessarily took into account
facts that the jury had not found at trial. See K. Stith &

2 M
CCLINTON v. UNITED STATES
A
LITO, J., concurring
J. Cabranes, Fear of Judging: Sentencing Guidelines in the
Federal Courts 9–10 (1998). It is particularly significant
that several federal criminal statutes enacted by the First
Congress followed this approach. See Act of Apr. 30, 1790,
1 Stat. 112–118. That same Congress framed and proposed
the Sixth Amendment and sent it to the States for ratifica-
tion, and we have often reasoned that statutes enacted by
that Congress are “persuasive evidence of what the Consti-
tution means.” Harmelin v. Michigan, 501 U. S. 957, 980
(1991) (opinion of Scalia, J.); see also, e.g., Bowsher v.
Synar, 478 U. S. 714, 723–724 (1986); Marsh v. Chambers,
463 U. S. 783, 790 (1983).
If, as the First Congress apparently believed, a sentenc-
ing judge may consider facts not proved at trial, that prin-
ciple undermines the fundamental argument advanced to
show that so-called acquitted conduct may not be consid-
ered.* Facts that simply affect a sentence “can be proved
. . . by a preponderance of the evidence,” United States v.
O’Brien, 560 U. S. 218, 224 (2010), but facts needed to es-
——————
*Without the benefit of full briefing and argument, I am reluctant to
opine on the history of the consideration of acquitted conduct at sentenc-
ing. See ante, at 2–3 (S
OTOMAYOR, J., statement respecting denial of cer-
tiorari). But because, as I explain, there is no relevant difference for
these purposes between acquitted conduct and uncharged conduct, the
historical evidence supporting consideration of uncharged conduct is
highly relevant to the consideration of acquitted conduct. Indeed, the
sources J
USTICE SOTOMAYOR cites in her historical discussion support my
arguments regarding the propriety of considering conduct not implicated
by the jury’s verdict and the logical connection between that and consid-
ering acquitted conduct. See Jones v. United States, 526 U. S. 227, 248
(1999) (“It is not, of course, that anyone today would claim that every fact
with a bearing on sentencing must be found by a jury; we have resolved
that general issue and have no intention of questioning its resolution”);
C. Murray, Hard Cases Make Good Law: The Intellectual History of
Prior Acquittal Sentencing, 84 St. John’s L. Rev. 1415, 1423–1425 (2010)
(explaining that the reasons that justify considering uncharged conduct
apply as a matter of logic to considering acquitted conduct).

3 Cite as: 600 U. S. ____ (2023)
A
LITO, J., concurring
tablish an element of a criminal offense must be proved be-
yond a reasonable doubt, In re Winship, 397 U. S. 358, 364
(1970). Therefore, the most that can be inferred from a not-
guilty verdict is that this high standard was not met.
United States v. Watts, 519 U. S. 148, 155 (1997) (per cu-
riam). It cannot be inferred that the facts needed to convict
were not shown by even a preponderance of the evidence,
and that is why, it has been thought, acquitted conduct may
be considered at sentencing. Ibid.
J
USTICE SOTOMAYOR mentions three other arguments in
favor of a rule barring consideration of acquitted conduct,
ante, at 4–5 (statement respecting denial of certiorari), but
all of these arguments have weaknesses. The first argu-
ment is that a jury that returns a not-guilty verdict may
have thought that even the preponderance-of-the-evidence
standard was not met, but it would be odd indeed to base a
constitutional rule on such speculation. Second, J
USTICE
SOTOMAYOR claims that jurors who vote for acquittal may
be surprised and even offended when they learn that the
judge took acquitted conduct into account at sentencing, but
jurors are not typically given the authority to choose the
sentence that is imposed on a defendant they convict. That
is usually the prerogative of the judge, and therefore any
jurors who feel that the judge has infringed on their author-
ity do not understand the scope of their role. In addition,
juror surprise about either the severity or leniency of the
sentence that a judge selects is almost certainly not con-
fined to situations in which the sentence was affected by
acquitted conduct. Third, J
USTICE SOTOMAYOR asserts that
“the woman on the street” would be surprised to learn that
a sentence was based on acquitted conduct. Ante, at 4
(statement respecting denial of certiorari). If that is true,
it shows only that many people do not understand that “an
acquittal on criminal charges does not prove that the de-
fendant is innocent; it merely proves the existence of a rea-

4 MCCLINTON v. UNITED STATES
A
LITO, J., concurring
sonable doubt as to his guilt.” United States v. One Assort-
ment of 89 Firearms, 465 U. S. 354, 361 (1984).
If we eventually take up the acquitted-conduct issue, we
will have to consider whether stare decisis stands in the
way. In United States v. Watts, we said that there is no
“prohibition against considering certain types of evidence
at sentencing,” including “uncharged or acquitted conduct.”
519 U. S., at 152–155. Although the only specific constitu-
tional challenge to consideration of acquitted conduct in
Watts was based on the Double Jeopardy Clause, rather
than due process or the jury-trial right, we framed our hold-
ing in broad terms, stating that “a jury’s verdict of acquittal
does not prevent the sentencing court from considering con-
duct underlying the acquitted charge, so long as that con-
duct has been proved by a preponderance of the evidence.”
Id., at 157. Justice Stevens’s dissent evinces the same
broad understanding of the Court’s decision. Id., at 165
(“The precise question here” is “the burden of proof applica-
ble to sentencing facts”). And subsequent decisions reflect
this same understanding. United States v. Booker, 543
U. S. 220, 251 (2005) (characterizing Watts as holding “that
a sentencing judge [can] rely for sentencing purposes upon
a fact that a jury had found unproved” (emphasis deleted));
Alabama v. Shelton, 535 U. S. 654, 665 (2002) (Defendant
was sentenced “in accord with due process . . . even if he
[was] acquitted of the” conduct the sentence was in part
based on (citing Watts; emphasis added)).
If holding that the Constitution prohibits the considera-
tion of acquitted conduct at sentencing would require us to
overrule Watts, we would also have to assess whether the
resulting rule would be workable. See, e.g., Kimble v. Mar-
vel Entertainment, LLC, 576 U. S. 446, 459–460 (2015) (an-
alyzing the workability not only of the precedent, but of the
proposed new rule as well). And while the Watts regime has
been shown to be eminently workable, significant practical
concerns pervade the alternatives.

5 Cite as: 600 U. S. ____ (2023)
A
LITO, J., concurring
First, it will frequently be “impossible to know exactly
why a jury found a defendant not guilty on a certain
charge.” Watts, 519 U. S., at 155. Take the example of an
acquittal in a felony-murder case. How could a court tell
whether the failure of proof concerned the killing or the un-
derlying felony? If a defendant was acquitted for murder in
aid of racketeering activity, see 18 U. S. C. §1959(a)(1), how
could a court know whether the verdict was because the
murder was unproved or because racketeering was not es-
tablished? In the case of an acquittal for traveling in inter-
state commerce with the intent to commit a crime of vio-
lence from which death in fact results, see §1952(a)(2)(B),
how could it be determined whether the prosecution failed
to prove the requisite intent or failed to show that the
defendant traveled in interstate commerce? No doubt,
special-verdict forms would proliferate in such a system, de-
spite the fact that they are generally disfavored in criminal
cases and thought to disadvantage defendants.
Second, barring consideration of acquitted conduct would
raise the issue of considering the conduct needed to convict
on a count on which the jury was unable to reach a verdict.
Suppose that a jury convicts on one count of an indictment
but deadlocks on the other, and suppose that the prosecu-
tion is content to proceed to sentencing. Can the sentencing
court consider conduct underlying the deadlocked count?
Finally, consider the following hypothetical. Suppose a
crime has three elements, A, B, and C. Suppose that the
jury acquits a defendant of the charge, and suppose that a
special-verdict form reveals that every juror found that the
prosecution had not proved A. If the facts needed to prove
B or C have a bearing on the appropriate sentence for a sep-
arate offense for which the defendant was found guilty,
what is the trial judge to do? Must the jury keep deliberat-
ing on B and C? Perhaps the jury, having decided that the
showing on A was obviously deficient, gave little thought to

6 MCCLINTON v. UNITED STATES
A
LITO, J., concurring
either of those elements. But sending the jury back to con-
tinue deliberating on B or C after it has already reached a
verdict of acquittal would be odd and unprecedented.
If the Court in some future case takes up the question of
the constitutionality of considering acquitted conduct at
sentencing, better arguments on both sides of the issue may
be presented to us, and nothing that I have written here
should be understood as the expression of a firm position on
that question. But because my colleagues have laid out
some of the arguments in favor of one side, I thought it ap-
propriate to outline some of the countervailing arguments.