MSC 152934 PEOPLE OF MI V ERIC LAMONTEE BECK Opinion on Application - Remand to TC 07/29/2019

PEOPLE v BECK
Docket No. 152934. Argued on application for leave to appeal January 23, 2019. Decided
July 29, 2019.
Eric L. Beck was convicted as a fourth-offense habitual offender of being a felon in
possession of a firearm (felon-in-possession) and carrying a firearm during the commission of a
felony (felony-firearm), second offense, after a jury trial in the Saginaw Circuit Court. He was
acquitted of open murder, carrying a firearm with unlawful intent, and two additional counts of
felony-firearm attendant to those charges. The applicable guidelines minimum sentence range for
the felon-in-possession conviction was 22 to 76 months in prison, but the court imposed a sentence
of 240 to 400 months (20 to 33⅓ years), to run consecutively to the mandatory five-year term for
second-offense felony-firearm. The court, James T. Borchard, J., explained that it had imposed
this sentence in part on the basis of its finding by a preponderance of the evidence that defendant
had committed the murder of which the jury acquitted him. Defendant appealed and challenged
his convictions and sentences on multiple grounds, including that the trial court erred by increasing
his sentence on the basis of conduct of which he had been acquitted. The Court of Appeals,
BOONSTRA , P.J., and SAAD and H OEKSTRA , JJ., issued an unpublished per curiam opinion on
November 17, 2015 (Docket No. 321806), remanding for further sentencing proceedings using the
procedure set forth in United States v Crosby, 397 F3d 103 (CA 2, 2005), in light of People v
Steanhouse, 313 Mich App 1 (2015), aff’d in part and rev’d in part 500 Mich 453 (2017).
Defendant sought leave to appeal in the Supreme Court, which, after holding the application in
abeyance for Steanhouse, ordered and heard oral argument on whether to grant the application or
take other action. 501 Mich 1065 (2018).
In an opinion by Chief Justice M CCORMACK , joined by Justices VIVIANO , BERNSTEIN , and
CAVANAGH , the Supreme Court, in lieu of granting leave to appeal, held:
Due process bars a sentencing court from finding by a preponderance of the evidence that
a defendant engaged in conduct of which he was acquitted and basing a sentence on that finding.
Accordingly, defendant’s sentence for felon-in-possession was vacated.
1. The Fourteenth Amendment of the United States Constitution incorporates the Sixth
Amendment right to a jury trial in state prosecutions. It also provides the right to due process,
which includes the presumption of innocence. The United States Supreme Court has issued a
number of decisions potentially relevant to whether a sentencing judge may rely on acquitted
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano
Justices:
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

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conduct when sentencing a defendant without violating due process or the right to a jury trial. In
McMillan v Pennsylvania, 477 US 79 (1986), the Court did not specifically address acquitted
conduct, but it held that a state statute allowing sentencing courts to find by a preponderance of
the evidence a fact the jury had not been asked to decide did not violate the Due Process Clause of
the Fourteenth Amendment or the jury-trial guarantee of the Sixth Amendment. In United States
v Watts, 519 US 148 (1997), which addressed a sentencing court’s reliance on acquitted conduct
in the context of the Double Jeopardy Clause of the Fifth Amendment rather than the Due Process
Clause, the Court held, citing McMillan, that a jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the acquitted charge as long as that conduct
has been proved by a preponderance of the evidence. The United States Supreme Court’s
jurisprudence analyzing a defendant’s due-process and Sixth Amendment rights changed
significantly after Jones v United States, 526 US 227 (1999), and Apprendi v United States, 530
US 466 (2000), which held that other than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and
proved beyond a reasonable doubt. The Michigan Supreme Court addressed the use of acquitted
conduct in People v Ewing (After Remand), 435 Mich 443 (1990), a case that resulted in a fractured
set of opinions in which it was not entirely clear what rule of law commanded a majority.
2. McMillan could not be considered dispositive of claims that the use of acquitted conduct
does not violate due process because McMillan did not involve the use of acquitted conduct;
intervening caselaw based on Alleyne v United States, 570 US 99 (2013), essentially overruled
McMillan’s Sixth Amendment analysis; and the intertwining nature of the Sixth Amendment right
to a jury trial and the Fourteenth Amendment right to due process rendered McMillan’s due-
process analysis significantly compromised. Watts was also unhelpful in resolving whether the
use of acquitted conduct at sentencing violated due process because Watts addressed only a double-
jeopardy challenge to the use of acquitted conduct.
3. Reliance on acquitted conduct at sentencing violates due process based on the
guarantees of fundamental fairness and the presumption of innocence, as several state courts and
many judges and commentators have concluded. When a jury has made no findings regarding a
defendant’s conduct, as in McMillan, no constitutional impediment prevents a sentencing court
punishing the defendant as if the defendant engaged in that conduct using a preponderance-of-the-
evidence standard. But when a jury has specifically determined that the prosecution has not proved
beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to
be presumed innocent. The use of the preponderance-of-the-evidence standard in evaluating
conduct that is protected by the presumption of innocence violates due process. Because the
sentencing court punished the defendant more severely on the basis of the judge’s finding by a
preponderance of the evidence that the defendant committed the murder of which the jury had
acquitted him, it violated the defendant’s due-process protections.
Sentence for felon-in-possession vacated; case remanded to the Saginaw Circuit Court for
resentencing.
Justice VIVIANO , concurring, agreed with the majority that due process precludes
consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard,
but he wrote separately to state his position that defendant’s sentence also violated the Sixth

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Amendment because it would not have been reasonable but for the judge-found fact that defendant
had committed the conduct for which he had been acquitted. Justice VIVIANO further stated that
he had serious concerns regarding whether the consideration of acquitted conduct at sentencing
could ever comply with the Sixth Amendment.
Justice CLEMENT , joined by Justices M ARKMAN and ZAHRA, dissenting, stated that a trial
court does not violate the presumption of innocence by considering conduct underlying an
acquitted charge when sentencing a defendant for convicted offenses because, at sentencing, the
standard of proof is lower, requiring only that the facts considered by the trial court are supported
by a preponderance of the evidence. She stated that defendant was not sentenced as if he had been
convicted of the crime of murder, but rather as if he had been convicted of felon-in-possession as
a fourth-offense habitual offender, with the trial court further determining by a preponderance of
the evidence that defendant had caused a death while doing so. Justice CLEMENT noted that the
majority’s standard was unsupported by precedent, was contrary to Ewing, and might be difficult
to apply in practice. She would have affirmed the Court of Appeals’ holding that the trial court
did not err by considering conduct underlying defendant’s acquitted charge but reversed the Court
of Appeals’ decision to remand the case to the trial court for a Crosby hearing. Instead, she would
have remanded the case to the Court of Appeals pursuant to People v Steanhouse, 500 Mich 453
(2017), to determine whether the trial court abused its discretion by violating the principle of
proportionality.
©2019 State of Michigan

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FILED July 29, 2019
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 152934
ERIC LAMONTEE BECK,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
M C C ORMACK, C.J.
In this case, we consider whether a sentencing judge can sentence a defendant for a
crime of which the defendant was acquitted.
That the question seems odd foreshadows its answer. But to explain the question
first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that
acquittal, take the same alleged crime into consideration when sentencing the defendant
for another crime of which the defendant was convicted? Such a possibility presents itself
when a defendant is charged with multiple crimes. The jury speaks, convicting on some
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Bridget M. M cCormack
Chief Justice Pro Tem:
David F. Viviano
Justices:
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh

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2
charges and acquitting on others. At sentencing for the former, a judge might seek to
increase the defendant’s sentence (under the facts of this case, severely increase, though
we consider the question in principle) because the judge believes that the defendant really
committed one or more of the crimes on which the jury acquitted.
Probably committed, that is: A judge in such circumstances might reason that
although the jury acquitted on some charges, the jury acquitted because the state failed to
prove guilt on those charges beyond a reasonable doubt. But the jury might have thought
it was somewhat likely the defendant committed them. Or the judge, presiding over the
trial, might reach that conclusion. And so during sentencing, when a judge may consider
the defendant’s uncharged bad acts under a lower standard—a mere preponderance of the
evidence—the judge might impose a sentence reflecting both the crimes on which the jury
convicted, and also those on which the jury acquitted but which the judge finds the
defendant more likely than not did anyway. Is that permissible?
We hold that the answer is no. Once acquitted of a given crime, it violates due
process to sentence the defendant as if he committed that very same crime.
Because the trial court in this case relied at least in part on acquitted conduct1 when
imposing sentence for the defendant’s conviction of being a felon in possession of a
1 A brief aside on vocabulary: The dissent criticizes the term “acquitted conduct” as
misleading, but that term comes directly from United Supreme Court precedent. See, e.g.,
Watts v United States, 519 US 148, 153-154; 117 S Ct 633; 136 L Ed 2d 554 (1997); Booker
v United States, 543 US 220, 240; 125 S Ct 738; 160 L Ed 2d 621 (2005).

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3
firearm, we reverse the Court of Appeals, vacate that sentence, and remand the case to the
Saginaw Circuit Court for resentencing.2
I. FACTS AND PROCEDURAL HISTORY
The defendant was jury-convicted as a fourth-offense habitual offender of being a
felon in possession of a firearm (felon-in-possession) and carrying a firearm during the
commission of a felony (felony-firearm), second offense, but acquitted of open murder,
carrying a firearm with unlawful intent, and two additional counts of felony-firearm
attendant to those charges. The applicable guidelines range for the felon-in-possession
conviction was 22 to 76 months, but the court imposed a sentence of 240 to 400 months
(20 to 33⅓ years), to run consecutively to the mandatory five-year term for second-offense
felony-firearm. The court explained its reasons for the sentence imposed as, among other
things, its finding by a preponderance of the evidence that the defendant committed the
murder of which the jury acquitted him. The court stated (emphasis added):
With respect to that charge the Court does find that there are
compelling reasons to go over the guidelines. The Court believes that . . . to
sentence within the guidelines would not be proportionate to the seriousness
of the defendant’s conduct or the seriousness of his criminal history. And
for that reason the Court is going to go over the guidelines in setting a
sentence that is, in fact, proportionate to those things.
In addition to that, the maximum—when you reach the maximum on
the guidelines in this case it’s at 75 points, this is way over that at 125 points.
2 Defendant’s request that the resentencing occur before a different judge is denied because
we are not persuaded that the standards set forth in People v Hill, 221 Mich App 391, 398;
561 NW2d 862 (1997), require reassigning the case to a different judge. See People v
Hicks, 485 Mich 1060 (2010) (applying the Hill standards). In all other respects, the
defendant’s application for leave to appeal is denied because we are not persuaded that the
remaining questions presented should be reviewed by this Court.

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4
That is another reason the Court may, and will go over the guidelines in this
case.
This gentleman has a prior murder conviction on his record that he
pled guilty to for which he served 13 years in prison. That was in 1991. He
was discharged from parole in 2007. In 2010, only three years later, he pled
no contest to a firearms, possession by a felon for which he received 252 days
in jail. And then this charge, offense date was June 11, 2013 where, again,
he is in possession of a firearm at a murder scene.
The testimony in this case by one of the witnesses who could not
identify him was that a man approached the victim with a gun. She saw a
muzzle flash and the victim fell to the ground and the perpetrator ran off.
The other witness, who was not alive at the time of the trial, and was
barely alive at the time of the prelim, identified this gentleman as the person
who approached the victim with the gun. Gave a positive identification.
Indicated she saw the gun. Then her story wavered as far as whether she saw
the shooting or whether she was in her kitchen at the time of the shooting. I
think the inconsistency, and where she was at the time of the shooting, as
well as her not being in court, affected the jury’s verdict. They could not
find, beyond a reasonable doubt, that the defendant committed the homicide.
But the Court certainly finds that there is a preponderance of the evidence
that he did.
And I am not substituting my opinion for their’s [sic]. I am just bound
by a different standard in this matter. And that is the reason for the Court’s
finding that, in fact, this gentleman, in my opinion, did kill the victim for no
reason other than jealousy. But, at the very minimum, he was the only person
seen at the scene with a weapon seconds prior. Two people hearing a shot,
and another lady seeing a shoot[ing] by someone she couldn’t identify. And,
certainly, provided the weapon. But in the Court’s opinion, he didn’t just
provide it, he actually was the person who perpetrated the killing. And I do
find by a preponderance of the evidence that that has been shown. And I do
consider that in going over the guidelines in this matter.
So for the fact that the guidelines don’t properly—are so far out of
scoring of 125, where 75 is the highest—but, more importantly, the fact that
there was a death. And the Court finds by a preponderance of the evidence
that this gentleman did shoot the victim.

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5
The defendant appealed and challenged his convictions and sentences on multiple
grounds, including that the trial court erred by increasing his sentence on the basis of
conduct of which he had been acquitted. The Court of Appeals issued an unpublished
opinion remanding for further sentencing proceedings (a Crosby remand)3 under People v
Steanhouse, 313 Mich App 1; 880 NW2d 297 (2015), aff’d in part and rev’d in part by
People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017). People v Beck, unpublished
per curiam opinion of the Court of Appeals, issued November 17, 2015 (Docket No.
321806). The defendant sought leave to appeal in this Court, which first held his
application in abeyance for our decision in Steanhouse.4 People v Beck, 884 NW2d 283
(Mich, 2016). After issuing our decision in Steanhouse, we ordered oral argument on the
defendant’s application and directed that it be heard at the same session as oral argument
3 A Crosby remand is the remedy this Court adopted in People v Lockridge, 498 Mich 358;
870 NW2d 502 (2015), for the Sixth Amendment violation that would occur when judicial
fact-finding was used to score the mandatory sentencing guidelines. It involves a remand
to the trial court for a determination of whether that court would have imposed a materially
different sentence if its discretion had not been constrained by the guidelines. Id. at 399.
This Court adopted the procedure from United States v Crosby, 397 F3d 103 (CA 2, 2005).
Lockridge, 498 Mich at 395-398.
4 Among other issues, the defendant challenged the reasonableness of his sentence, and this
Court held in Steanhouse that
the proper inquiry when reviewing a sentence for reasonableness is whether
the trial court abused its discretion by violating the “principle of
proportionality” set forth in People v Milbourn, 435 Mich 630, 636; 461
NW2d 1 (1990), “which requires sentences imposed by the trial court to be
proportionate to the seriousness of the circumstances surrounding the offense
and the offender.” [Steanhouse, 500 Mich at 459-460.]

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6
on the prosecution’s application in People v Dixon-Bey, 501 Mich 1066 (2018). People v
Beck, 501 Mich 1065, 1065-1066 (2018).5
II. LEGAL BACKGROUND
A. CONSTITUTIONAL AMENDMENTS
The defendant argues that the trial court’s reliance on conduct of which he was
acquitted to increase his sentence violates his constitutional rights under the Sixth and
Fourteenth Amendments of the United States Constitution, as interpreted by the United
States Supreme Court.6 The Sixth Amendment of the United States Constitution provides
in part:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district wherein
5 Our order asking for oral argument on the application directed the parties to brief the
following issues:
(1) the appropriate basis for distinguishing between permissible trial court
consideration of acquitted conduct, see People v Ewing (After Remand), 435
Mich 443, 451-452 [458 NW2d 880] (1990) (opinion by B RICKLEY, J.); id.
at 473 (opinion by BOYLE , J.); see also United States v Watts, 519 US 148
[117 S Ct 633; 136 L Ed 2d 554] (1997), and an impermissible “independent
finding of defendant’s guilt” by a trial court on an acquitted charge, see
People v Grimmett, 388 Mich 590, 608 [202 NW2d 778] (1972), overruled
on other grounds by People v White, 390 Mich 245, 258 (1973); see also
People v Fortson, 202 Mich App 13, 21 [507 NW2d 763] (1993); and (2)
whether the trial court abused its discretion by departing from the guidelines
range, where the jury acquitted the defendant of murder, but the court
departed based on its finding by a preponderance of the evidence that the
defendant had perpetrated the killing. [Beck, 501 Mich at 1065.]
As in Dixon-Bey, we also invited the Prosecuting Attorneys Association of Michigan and
the Criminal Defense Attorneys of Michigan to file amicus curiae briefs.
6 The defendant has not independently challenged the trial court’s reliance on acquitted
conduct under the Michigan Constitution, so we do not address that issue here.

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7
the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of
the accusation.
The Fourteenth Amendment of the United States Constitution provides in relevant
part:
No State shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process of law;
nor deny to any person within its jurisdiction the equal protection of the laws.
B. CASELAW INTERPRETING THOSE RIGHTS
1. UNITED STATES SUPREME COURT
As a general matter, the Fourteenth Amendment incorporates the Sixth Amendment
right to a jury trial in state prosecutions. Duncan v Louisiana, 391 US 145, 149; 88 S Ct
1444; 20 L Ed 2d 491 (1968). And the Fourteenth Amendment right to due process
includes “the presumption of innocence—that bedrock ‘axiomatic and elementary’
principle whose ‘enforcement lies at the foundation of the administration of our criminal
law.’ ” In re Winship, 397 US 358, 363; 90 S Ct 1068; 25 L Ed 2d 368 (1970), quoting
Coffin v United States, 156 US 432, 453; 15 S Ct 394; 39 L Ed 481 (1895).
The United States Supreme Court has issued a number of decisions potentially
relevant to the issue presented here—whether a sentencing judge may rely on acquitted
conduct when sentencing a defendant without violating due process or the right to a jury
trial. In the first, McMillan v Pennsylvania, 477 US 79; 106 S Ct 2411; 91 L Ed 2d 67
(1986), the Court did not specifically address acquitted conduct. Rather, it considered
whether a Pennsylvania statute that allowed sentencing courts to find by a preponderance
of the evidence that the person “visibly possessed a firearm” during the commission of the

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8
offense, resulting in a five-year mandatory minimum sentence, was constitutional. Id. at
81. That is, the statute permitted the court to find by a preponderance a fact the jury had
not been asked to decide. The Court held that the statute did not violate the Due Process
Clause of the Fourteenth Amendment or the jury-trial guarantee of the Sixth Amendment.
Id. at 91-93. It explained that it saw no reason to “constitutionaliz[e] burdens of proof at
sentencing.” Id. at 92.
Next came United States v Watts, 519 US 148; 117 S Ct 633; 136 L Ed 2d 554
(1997). Watts did address a sentencing court’s reliance on acquitted conduct, but in the
context of a claim that the use of such conduct violated the Double Jeopardy Clause of the
Fifth Amendment. Citing McMillan, the Court held that “a jury’s verdict of acquittal does
not prevent the sentencing court from considering conduct underlying the acquitted charge,
so long as that conduct has been proved by a preponderance of the evidence.” Id. at 157.
The Court did not address the Fourteenth Amendment right to due process.
Around 1999, the United States Supreme Court’s jurisprudence analyzing a
defendant’s due-process and Sixth Amendment rights underwent a sea change. In Jones v
United States, 526 US 227, 232; 119 S Ct 1215; 143 L Ed 2d 311 (1999), and then Apprendi
v United States, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), the Court established
the following constitutional rule:7 “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 US at 490.
The Court further noted that its rule was grounded in the “Due Process Clause of the Fifth
7 Jones was decided on statutory-construction grounds, but the next term the Apprendi
Court concluded that its rule was constitutionally mandated.

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9
Amendment and the notice and jury trial guarantees of the Sixth Amendment” and that
“[t]he Fourteenth Amendment commands the same answer in this case involving a state
statute.” Apprendi, 530 US at 476. The “Apprendi revolution,” as it has been called, has
wrought significant changes in sentencing practices in state and federal courts. See
generally Booker v United States, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005)
(relying on Apprendi’s rule to strike down the mandatory federal sentencing guidelines and
make them advisory only); Lockridge, 498 Mich at 399 (doing the same to Michigan’s
mandatory sentencing guidelines).
2. MICHIGAN SUPREME COURT
This Court has also addressed the use of acquitted conduct, albeit in a case with a
fractured set of opinions in which it is not entirely clear what rule of law commanded a
majority. In People v Ewing (After Remand), 435 Mich 443; 458 NW2d 880 (1990), there
were three substantive opinions: 8 Justice B RICKLEY’s lead opinion, Justice A RCHER ’s
opinion concurring in part and dissenting in part, and Justice B OYLE ’s concurring opinion
(joined by Justices R ILEY and GRIFFIN) that dissented in result. Justice BOYLE ’s opinion
blessed the practice of sentencing courts relying on acquitted conduct as long as it was
proven by a preponderance of the evidence. Id. at 473 (opinion by BOYLE , J.). Justice
B OYLE relied primarily on McMillan and Dowling v United States, 493 US 342, 349; 110
S Ct 668; 107 L Ed 2d 708 (1990), to support that conclusion. Ewing (After Remand), 435
Mich at 472-473 & n 15.
8 Justice C AVANAGH wrote a brief two-sentence concurring opinion that was silent on
reasoning (joined by Justice LEVIN).

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10
Justice B RICKLEY’s lead opinion is harder to parse. He agreed with Justice BOYLE
that “the mere fact of a prior acquittal of charges whose underlying facts are properly made
known to the trial judge is not, without more, sufficient reason to preclude the judge from
taking those facts into account at sentencing.” Id. at 451 (opinion by BRICKLEY, J.). Yet
his opinion proceeds to say that a judge’s right to rely on such conduct might be limited
under some circumstances not before the Court. Id. at 453-455. Among these caveats is
the statement that “we are not presented with the issue whether a defendant may be
punished for a crime for which no conviction was obtained; this is clearly
unconstitutional.” Id. at 454. Finally, Justice B RICKLEY agreed with the majority of
justices who concluded a remand to the trial court was required to “test the accuracy of
these allegations regarding his conduct.” Id. at 446. Thus, the binding rule of law from
Ewing, if any, is murky at best.9
III. ANALYSIS
The question whether the Sixth and Fourteenth Amendments permit the use of
acquitted conduct to increase a defendant’s sentence presents issues of constitutional
9 Perhaps for this reason, this Court has never cited Ewing for any binding legal rule.
Notwithstanding these questions, much of the dissent’s argument relies on Ewing and treats
it as binding precedent. For reasons we have explained, we disagree with the dissent’s
reading of Ewing. Moreover, it is worth noting that Justice BRICKLEY’s lead opinion
provided the fourth vote for the disposition in Ewing: a remand to the trial court for further
development of the sentencing record; Justice BOYLE and the justices joining her opinion
would have simply reinstated the trial court’s sentence. Thus, even assuming that Justice
B RICKLEY agreed with the dissent in some theoretical but undefined way about acquitted
conduct, it is difficult to see how that agreement could equate to a binding legal rule given
the difference in the votes as to the disposition of the case. “[S]tatements concerning a
principle of law not essential to determination of the case are obiter dictum and lack the
force of an adjudication[.]” Roberts v Auto-Owners Ins Co, 422 Mich 594, 597-598; 374
NW2d 905 (1985).

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11
interpretation, which we review de novo. Lockridge, 498 Mich at 373. That means that
we review the issues independently, with no required deference to the trial court. Millar v
Constr Code Auth, 501 Mich 233, 237; 912 NW2d 521 (2018).
Federal courts that have addressed constitutional challenges to the use of acquitted
conduct at sentencing have relied almost entirely on McMillan and Watts to reject both
due-process and Sixth Amendment challenges. See, e.g., United States v Horne, 474 F3d
1004, 1006 (CA 7, 2007) (citing McMillan and Watts but not identifying the constitutional
right at issue); United States v Dorcely, 372 US App DC 170, 175-177 (rejecting both due-
process and Sixth Amendment arguments, citing McMillan and Watts); United States v
Faust, 456 F3d 1342, 1347-1348 (CA 11, 2006) (finding no Sixth Amendment violation,
discussing Watts); United States v Boney, 298 US App DC 149, 160-161; 977 F2d 624
(1992) (due process) (collecting cases). We see several problems with relying on those
cases for due-process purposes,10 and we address each of these concerns in greater detail
below.
10 We decline to reach the defendant’s argument that the use of acquitted conduct violates
the Sixth Amendment right to a jury trial under Apprendi and its progeny. To our
knowledge, although some federal district courts have opined that the use of acquitted
conduct is unconstitutional and declined to consider it at sentencing, no appellate court in
the country has accepted that argument. See, e.g., United States v White, 551 F3d 381,
384-385 (CA 6, 2008) (finding no Sixth Amendment problem with relying on acquitted
conduct when sentencing a defendant under the advisory guidelines system because “[b]y
freeing a district court to impose a non-guidelines sentence, Booker pulled out the thread
that holds White’s Sixth Amendment claim together”). But there has been persistent
criticism of that uniformity. See, e.g., White, 551 F3d at 387 (Merritt, J., dissenting)
(arguing that the defendant’s sentence, as increased on the basis of acquitted conduct,
“represents an as-applied violation of White’s Sixth Amendment rights” under Apprendi).

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12
A. McMILLAN
There are at least three problems with relying on McMillan as dispositive of claims
that the use of acquitted conduct does not violate due process. First, McMillan did not
involve the use of acquitted conduct. Second, its constitutional analysis rests on very shaky
footing in light of intervening caselaw. Third, even if it is only McMillan’s Sixth
Amendment analysis that has been abrogated, the intertwining nature of the Sixth
Amendment right to a jury trial and the Fourteenth Amendment right to due process makes
it all but impossible not to view its due-process analysis as significantly compromised.
First problem: McMillan did not involve a trial court’s reliance on acquitted
conduct, and so it never addressed this unique question.11 Thus, its general holding that it
does not violate due process or the Sixth Amendment for the trial court to find facts by a
preponderance of the evidence when imposing sentence is not obviously applicable.12
11 To the extent McMillan’s analysis is grounded in the general principle from Williams v
New York, 337 US 241, 69 S Ct 1079; 93 L Ed 1337 (1949), that “[s]entencing courts have
traditionally heard evidence and found facts without any prescribed burden of proof at all,”
McMillan, 477 US at 91, it is noteworthy that Williams itself limited the breadth of its
holding by asserting that “[w]hat we have said is not to be accepted as a holding that the
sentencing procedure is immune from scrutiny under the due-process clause,” Williams,
337 US at 252 n 18; see also Townsend v Burke, 334 US 736, 741; 68 S Ct 1252; 92 L Ed
1690 (1948) (holding that sentencing a defendant on the basis of untrue assumptions about
his criminal record violated due process).
12 McMillan itself has language recognizing that its rule may not apply outside the
particular question it addressed. See McMillan, 477 US at 91 (stating that “we have little
difficulty concluding that in this case the preponderance standard satisfies due process”)
(emphasis added); id. at 92 (stating that “[w]e see nothing in Pennsylvania’s scheme that
would warrant constitutionalizing burdens of proof at sentencing”) (emphasis added).
Other courts have also recognized that McMillan and related Supreme Court cases, “while
generally endorsing rules that permit sentence enhancements to be based on conduct not
proved to the same degree required to support a conviction, have not embraced the concept

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13
Acquitted conduct is, of course, different from uncharged conduct—acquitted conduct has
been formally charged and specifically adjudicated by a jury. While it is true that McMillan
declined to “constitutionaliz[e] burdens of proof at sentencing,” McMillan, 477 US at 92,
that disinclination was expressed in an answer to a different question than the one we
answer now.
Acquitted conduct is already constitutionalized. Due process encompasses the
requirement that the state prove the charges beyond a reasonable doubt, to be sure. But
that’s not all it guarantees. 13 See Faust, 456 F3d at 1352 (Barkett, J., concurring specially)
(concluding that the use of acquitted conduct at sentencing violates “other aspects of ‘the
requirement of fundamental fairness’ embodied in the constitutional right to due process
of law”), quoting Winship, 397 US at 369 (Harlan, J., concurring). It also encompasses the
presumption of innocence and the requirement of notice.
A defendant is entitled to a presumption of innocence as to all charged conduct until
proven guilty beyond a reasonable doubt, and that presumption is supposed to do
meaningful constitutional work as long as it applies. At least that’s what we tell the
accused 14 and the jury15 about how it works. We can think of no reason that a jury’s finding
that those rules are free from constitutional constraints.” United States v Lombard, 72 F3d
170, 176 (CA 1, 1995).
13 See, e.g., Faust, 456 F3d at 1351 n 2 (Barkett, J., concurring specially) (“I address my
disagreement with McMillan primarily in order to distinguish the due process claim
rejected by the Supreme Court in that case from the very different and particular due
process problem . . . that arises when a defendant is sentenced on the basis of charges of
which he has actually been acquitted.”).
14 MCR 6.610(E)(3)(b)(iv); MCR 6.302(B)(3)(b) and (c).
15 M Crim JI 1.9; M Crim JI 3.2.

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14
the defendant not guilty of a charge undoes that guarantee. In fact, the jury’s view that the
state did not meet its burden of proof should cut the other way.
Hypotheticals are helpful. Imagine a judge sending a defendant acquitted of all the
charges against him to prison because the judge believed the evidence supported some
punishment. Or a judge in a bench trial acquits a defendant of some charges but convicts
of others and then punishes him as if he had been convicted of all the charges.
The difference between acquitted conduct and uncharged bad acts presented at
sentencing is critical and constitutional. Acquitted conduct shows up at sentencing in the
company of the due-process protection of the presumption of innocence; uncharged
conduct does not, says McMillan.
Due process also requires adequate notice. A defendant sentenced for conduct the
jury acquitted him of surely has a notice complaint. See, e.g., United States v Canania,
532 F3d 764, 777 (CA 8, 2008) (Bright, J., concurring) (stating that the use of acquitted
conduct at sentencing violates the due-process right to notice because “[i]t is not
unreasonable for a defendant to expect that conduct underlying a charge of which he’s been
acquitted to play no determinative role in his sentencing”); see also Ewing, 435 Mich at
454 (opinion by BRICKLEY, J.) (stating that before acquitted conduct may be used to
enhance a sentence, a defendant “should be able to test the accuracy of those allegations”
so that the judge “may hear argument from the parties and decide how to view [acquitted
conduct] testimony in light of the acquittal”). Because McMillan concerned uncharged
conduct and not acquitted conduct, it does not address these constitutional due-process
questions. Nor could it have—uncharged and therefore unconsidered-by-a-jury conduct is
apples to acquitted conduct’s oranges.

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15
Second problem: McMillan’s continued vitality is significantly in question after
Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013). At minimum,
its Sixth Amendment analysis has been overruled in everything but name.16
Third problem: even if McMillan’s due-process analysis remains superficially
viable, the complementary analysis of the Sixth Amendment jury-trial right and the
Fourteenth Amendment due-process right necessarily calls it into question as a practical
matter. See Apprendi, 530 US at 476 (stating that its rule is grounded in the notice and
jury-trial rights of the Sixth Amendment as well as the Fourteenth Amendment); Alleyne,
570 US at 104 (opinion by Thomas, J.) (stating that it is the Sixth Amendment jury-trial
right “in conjunction with the Due Process Clause” that requires that each element of a
16 The Alleyne Court did us no favors in that regard given that arguably, but only arguably,
five justices said that Alleyne overruled McMillan. Alleyne, 570 US at 119-120
(Sotomayor, J., concurring, joined by Ginsburg and Kagan, JJ.) (noting that “Five Members
of the Court” in Harris v United States, 536 US 545; 122 S Ct 2406; 153 L Ed 2d 524
(2002), recognized that McMillan’s analysis was inconsistent with Apprendi and that
McMillan survived Harris only because Justice Breyer could not “yet accept” Apprendi);
see id. at 124 (Breyer, J., concurring in part and concurring in the judgment) (agreeing with
overruling Harris because “the time has come to end this anomaly in Apprendi’s
application” but not mentioning McMillan) (emphasis added); id. at 133 (Alito, J.,
dissenting) (characterizing the majority opinion as “cast[ing] aside” McMillan as well as
Harris). But the evidence is mounting, and it suggests McMillan’s due-process analysis
has become equally untenable. See United States v Haymond, 588 US ___; ___ S Ct ___;
___ L Ed 2d ___ (2019) (Docket No. 17-1672) (opinion by Gorsuch, J.); slip op at 9-10
(stating that Alleyne found “no basis in the original understanding of the Fifth and Sixth
Amendments for McMillan and Harris” and “expressly overruled those decisions”).
Several courts post-Alleyne have specifically stated that Alleyne overruled
McMillan, even though the majority opinion in Alleyne did not explicitly do so. See, e.g.,
Robinson v Woods, 901 F3d 710, 715 (CA 6, 2018) (stating that “Alleyne was a watershed
opinion, overruling two prior precedents—Harris . . . and McMillan”); United States v
Cassius, 777 F3d 1093, 1095 (CA 10, 2015) (stating that in Alleyne “the Supreme Court
explicitly overruled Harris and McMillan”); Commonwealth v Hanson, 623 Pa 388, 414;
82 A3d 1023 (2013) (characterizing Alleyne as having “overruled” Harris and McMillan).

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16
crime be proved to the jury beyond a reasonable doubt). The interwoven nature of the
United States Supreme Court’s analysis of the Sixth Amendment and due-process rights
makes it impossible to conclude that its analysis of the former has been repudiated but its
analysis of the latter remains entirely viable.
That said, while we believe McMillan rests on an extremely shaky foundation, we
leave to the United States Supreme Court “the prerogative of overruling its own decisions.”
Rodriguez de Quijas v Shearson/American Express, Inc, 490 US 477, 484; 109 S Ct 1917;
104 L Ed 2d 526 (1989). Thus, it is because McMillan did not involve acquitted conduct
that we conclude that it does not answer the question here.
B. WATTS
Watts is in many ways the most difficult to dispense with, and also the most difficult
to parse. Watts directly addressed a sentencing court’s use of acquitted conduct at
sentencing. But though its language was not always specific about the constitutional right
it examined,17 in a later case the Court made clear that Watts addressed only a double-
jeopardy challenge to the use of acquitted conduct. Five justices gave it side-eye treatment
17 The Watts Court at one point quoted Dowling for the proposition that “ ‘an acquittal in a
criminal case does not preclude the Government from relitigating an issue when it is
presented in a subsequent action governed by a lower standard of proof.’ ” Watts, 519 US
at 156, quoting Dowling, 493 US at 349. Dowling, unlike Watts, was both a double-
jeopardy and a due-process case. But it also involved a different question from the one
presented here: the issue in Dowling was whether the trial court could admit other-acts
evidence in a subsequent prosecution when that other-acts evidence involved conduct of
which the defendant had previously been acquitted. It did not involve whether the trial
court could punish the defendant more severely on the basis of that acquitted conduct. See
also People v Oliphant, 399 Mich 472, 499-500; 250 NW2d 443 (1976) (similarly
concluding, 14 years before Dowling, that the introduction of acquitted conduct as other-
acts evidence did not violate double jeopardy, though not addressing due process).

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17
in Booker and explicitly limited it to the double-jeopardy context. Booker, 543 US at
240 n 4 (observing that Watts “presented a very narrow question regarding the interaction
of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of
full briefing or oral argument,” so it was “unsurprising that we failed to consider fully the
issues presented to us in these cases”).18 As we must, we take the Court at its word. We
therefore find Watts unhelpful in resolving whether the use of acquitted conduct at
sentencing violates due process.19
C. SO NOW WHAT?
Because we conclude that neither McMillan nor Watts requires us to reject the
defendant’s argument that the use of acquitted conduct to sentence a defendant more
18 In a pre-Booker case, Alabama v Shelton, 535 US 654, 665; 122 S Ct 1764; 152 L Ed 2d
888 (2002), the United States Supreme Court cited Watts for the proposition (made in
passing) that a sentencing court’s reliance on acquitted conduct does not violate due
process. We consider that dictum repudiated by Booker’s clear statement limiting Watts
to the double-jeopardy context.
19 We also find it significant that although Watts stated that the use of acquitted conduct at
sentencing was not constitutionally barred by double-jeopardy principles, its analysis relied
substantially on a statute that has no counterpart in Michigan law. In Watts, the Supreme
Court quoted 18 USC 3661 as codifying the “longstanding principle that sentencing courts
have broad discretion to consider various kinds of information.” Watts, 519 US at 151.
That statute provides:
No limitation shall be placed on the information concerning the
background, character, and conduct of a person convicted of an offense
which a court of the United States may receive and consider for the purpose
of imposing an appropriate sentence.

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18
harshly violates due process, 20 we address this question on a clean slate.21 A few state
courts have concluded that reliance on acquitted conduct at sentencing violates due process,
grounding that conclusion in the guarantees of fundamental fairness and the presumption
of innocence. See State v Cote, 129 NH 358, 375; 530 A2d 775 (1987) (concluding that
“the presumption of innocence is as much ensconced in our due process as the right to
counsel,” citing Coffin); State v Marley, 321 NC 415, 425; 364 SE2d 133 (1988) (also
citing Coffin in support of its conclusion that “due process and fundamental fairness
precluded the trial court from aggravating defendant’s second degree murder sentence with
the single element—premeditation and deliberation—which, in this case, distinguished
first degree murder after the jury had acquitted defendant of first degree murder”).
We agree. When a jury has made no findings (as with uncharged conduct, for
example), no constitutional impediment prevents a sentencing court from punishing the
defendant as if he engaged in that conduct using a preponderance-of-the-evidence
standard.22 But when a jury has specifically determined that the prosecution has not proven
20 The dissent claims that our holding directly contradicts existing precedent, but it
primarily cites only federal circuit court cases that rely on McMillan and Watts to support
its claim. But of course “[a]lthough lower federal court decisions may be persuasive, they
are not binding on state courts.” Abela v Gen Motors Corp, 469 Mich 603, 607; 677 NW2d
325 (2004). And to the extent the dissent relies on McMillan, Watts, and our decision in
Ewing, we have explained why we don’t find these decisions persuasive or binding.
21 While we disagree with the dissent’s view that Ewing is binding on us, we agree with
the dissent that our decision in People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972),
overruled in part on other grounds by People v White, 390 Mich 245; 212 NW2d 222
(1973), is not controlling here for the reasons the dissent gives.
22 Unless, of course, those findings mandate an increase in the mandatory minimum or
statutory maximum sentence. See Apprendi, 530 US 466; Alleyne, 570 US 99.

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19
beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant
continues to be presumed innocent. 23 “To allow the trial court to use at sentencing an
essential element of a greater offense as an aggravating factor, when the presumption of
innocence was not, at trial, overcome as to this element, is fundamentally inconsistent with
the presumption of innocence itself.” Marley, 321 NC at 425.
Unlike the uncharged conduct in McMillan, conduct that is protected by the
presumption of innocence may not be evaluated using the preponderance-of-the-evidence
standard without violating due process. While we recognize that our holding today
represents a minority position, one final consideration informs our conclusion: the volume
and fervor of judges and commentators who have criticized the practice of using acquitted
conduct as inconsistent with fundamental fairness and common sense. Regarding jurists,
see, e.g., Faust, 456 F3d at 1349 (Barkett, J., concurring specially) (“I strongly
believe . . . that sentence enhancements based on acquitted conduct are unconstitutional
under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment”);
id. at 1351-1352 & n 2; Canania, 532 F3d at 778 (Bright, J., concurring) (“I wonder what
the man on the street might say about this practice of allowing a prosecutor and judge to
23 We respectfully disagree with the dissent’s view that this is an overbroad reading of the
presumption of innocence. The fact that the prosecution has overcome this presumption as
to one charge does not allow a court to ignore that it has not done so as to others. See
generally Estelle v Williams, 425 US 501, 503; 96 S Ct 1691; 48 L Ed 2d 126 (1976)
(stating that “[t]o implement the presumption, courts must be alert to factors that may
undermine the fairness of the fact-finding process” and “carefully guard against dilution of
the principle that guilt is to be established by probative evidence and beyond a reasonable
doubt”). Little would seem to more “undermine the fairness of the fact-finding process”
than having the fact-finder render a not-guilty verdict yet allow the judge to impose a
sentence based on his own conclusion that the defendant did commit the acquitted offense.

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20
say that a jury verdict of ‘not guilty’ for practical purposes may not mean a thing”); United
States v Mercado, 474 F3d 654, 662 (CA 9, 2007) (Fletcher, J., dissenting) (“Such a
sentence has little relation to the actual conviction, and is based on an accusation that failed
to receive confirmation from the defendant’s equals and neighbors”); United States v
White, 551 F3d 381, 392 (CA 6, 2008) (Merritt, J., dissenting) (“[T]he use of acquitted
conduct at sentencing defies the Constitution, our common law heritage, the Sentencing
Reform Act, and common sense.”); United States v Brown, 892 F3d 385, 408 (CA DC,
2018) (Millett, J., concurring) (“[A]llowing courts at sentencing ‘to materially increase the
length of imprisonment’ based on conduct for which the jury acquitted the defendant guts
the role of the jury in preserving individual liberty and preventing oppression by the
government.”) (citation omitted); id. at 415 (Kavanaugh, J., dissenting in part) (“[T]here
are good reasons to be concerned about the use of acquitted conduct at sentencing, both as
a matter of appearance and as a matter of fairness . . . .”).
Regarding commentators, for just a sampling, see Johnson, The Puzzling
Persistence of Acquitted Conduct in Federal Sentencing, and What Can be Done About It,
49 Suffolk Univ L Rev 1, 25 (2016) (quoting other sources for the proposition that “[t]he
use of acquitted conduct has been characterized as, among other things, ‘Kafka-esque,
repugnant, uniquely malevolent, and pernicious[,]’ ‘mak[ing] no sense as a matter of law
or logic,’ and . . . a ‘perver[sion] of our system of justice,’ as well as ‘bizarre’ and
‘reminiscent of Alice in Wonderland’ ”); Ngov, Judicial Nullification of Juries: The Use
of Acquitted Conduct at Sentencing, 76 Tenn L Rev 235, 261 (2009) (“[T]he jury is
essentially ignored when it disagrees with the prosecution. This outcome is nonsensical
and in contravention of the thrust of recent Supreme Court jurisprudence.”); Beutler, A

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21
Look at the Use of Acquitted Conduct at Sentencing, 88 J Crim L & Criminology 809, 809
(1998) (observing that “[t]he use of acquitted conduct in sentencing raises due process and
double jeopardy concerns that deserved far more careful analysis than they received” in
Watts and noting “the fundamental differences between uncharged and acquitted conduct
which trigger these constitutional concerns”).
This ends here. Unlike many of those judges and commentators, we do not believe
existing United States Supreme Court jurisprudence prevents us from holding that reliance
on acquitted conduct at sentencing is barred by the Fourteenth Amendment. We hold that
it is.
Because the sentencing court punished the defendant more severely on the basis of
the judge’s finding by a preponderance of the evidence that the defendant committed the
murder of which the jury had acquitted him, 24 it violated the defendant’s due-process
protections.
24 The dissent spends most of its pages denying that this is what the trial court did, asserting
that the court merely sentenced him as if he had caused a death while committing felon-in-
possession as a fourth-offense habitual offender. But the judge’s comments at sentencing
are clear, as the dissent itself later concedes. Thus, to the extent the distinction the dissent
wants to draw between sentencing a defendant more harshly based on the conclusion that
the defendant committed an offense of which he was acquitted and sentencing a defendant
“while considering conduct that supported the acquitted charge” is a meaningful one (and
we are not convinced it is), this case plainly involves the former.
Finally, the dissent essentially says that trial courts are free to sentence defendants
for all acquitted charges as long as the sentence imposed is statutorily permitted in
connection with the convicted charge. Or, put differently, the court can’t impose the
statutory sentence for the acquitted charge if it’s not a permissible sentence for the
convicted charge. But that constraint is already established by the sentencing statutes. The
dissent’s constitutional rule therefore would apply to exactly zero cases.

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22
IV. CONCLUSION
We hold that due process bars sentencing courts from finding by a preponderance
of the evidence that a defendant engaged in conduct of which he was acquitted. Because
the judge did exactly that in this case, we vacate the defendant’s sentence for felon-in-
possession and remand that case to the Saginaw Circuit Court for resentencing consistent
with this opinion.
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
Megan K. Cavanagh

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S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 152934
ERIC LAMONTEE BECK,
Defendant-Appellant.
V IVIANO, J. (concurring).
In every criminal trial, jurors are instructed, “What you decide about any fact in this
case is final.” 1 But if a judge may increase a defendant’s sentence beyond what the jury
verdict alone authorizes—here, based on the judge’s finding that the defendant committed
a crime of which the jury just acquitted him—a more accurate instruction would read:
“What you decide about any fact in this case is interesting, but the court is always free to
disregard it.” Though I concur fully in the majority opinion, including its holding that due
process precludes consideration of acquitted conduct at sentencing under a preponderance-
of-the-evidence standard, I write separately to explain (1) why I believe that, because
defendant’s sentence would not survive reasonableness review without the judge-found
fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe
1 M Crim JI 2.4(3). A similar instruction is given in every civil trial. See M Civ JI 2.03
(“Your decision as to any fact in this case is final.”).

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2
more generally that the consideration of acquitted conduct at sentencing raises serious
concerns under the Sixth Amendment.
The Sixth Amendment enshrines the right to trial by jury: “In all criminal
prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the State and district wherein the crime shall have been committed . . . .” 2 As the
majority recognizes, the United States Supreme Court has not addressed whether the use
of acquitted conduct at sentencing is permissible under the Sixth Amendment. United
States v Watts3 was a Fifth Amendment decision. However, although the Supreme Court
has not directly answered this question, I believe that its Sixth Amendment jurisprudence
provides helpful guidance.
I. THE JURY MUST AUTHORIZE ALL FACTS NECESSARY TO PREVENT A
SENTENCE FROM BEING SUBSTANTIVELY UNREASONABLE
In Blakely v Washington,4 the Supreme Court stated, “When a judge inflicts
punishment that the jury’s verdict alone does not allow, the jury has not found all the facts
‘which the law makes essential to the punishment,’ . . . and the judge exceeds his proper
authority.” In other words, as Justice Antonin Scalia explained in his dissent in Oregon v
Ice, “[W]e have hitherto considered ‘the central sphere of [the Supreme Court’s] concern’
to be facts necessary to the increase of the defendant’s sentence beyond what the jury
2 US Const, Am VI. See also Const 1963, art 1, § 20 (“In every criminal prosecution, the
accused shall have the right to a speedy and public trial by an impartial jury . . . .”).
3 United States v Watts, 519 US 148; 117 S Ct 633; 136 L Ed 2d 554 (1997).
4 Blakely v Washington, 542 US 296, 304; 124 S Ct 2531; 159 L Ed 2d 403 (2004), quoting
1 Bishop, Criminal Procedure (2d ed), § 87, p 55.

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3
verdict alone justifies. ‘If the jury’s verdict alone does not authorize the sentence, if,
instead, the judge must find an additional fact to impose the longer term, the Sixth
Amendment requirement is not satisfied.’ ” 5 This makes sense. “A judge’s authority to
issue a sentence derives from, and is limited by, the jury’s factual findings of criminal
conduct.”6
Even under United States v Booker’s 7 advisory guidelines, there can be instances
where the jury’s verdict alone does not authorize the punishment because the punishment
would not be reasonable except for the judge’s finding of fact. In his concurrence in Rita
v United States, Justice Scalia offered two hypothetical situations that would pose such
Sixth Amendment concerns:
First, consider two brothers with similar backgrounds and criminal
histories who are convicted by a jury of respectively robbing two banks of
an equal amount of money. Next assume that the district judge finds that one
brother, fueled by racial animus, had targeted the first bank because it was
owned and operated by minorities, whereas the other brother had selected the
second bank simply because its location enabled a quick getaway. Further
assume that the district judge imposes the statutory maximum upon both
brothers, basing those sentences primarily upon his perception that bank
robbery should be punished much more severely than the Guidelines base
level advises, but explicitly noting that the racially biased decisionmaking of
5 Oregon v Ice, 555 US 160, 178; 129 S Ct 711; 172 L Ed 2d 517 (2009) (Scalia, J.,
dissenting), quoting Cunningham v California, 549 US 270, 290; 127 S Ct 856; 166 L Ed
2d 856 (2007). See also Alleyne v United States, 570 US 99, 103; 133 S Ct 2151; 186 L
Ed 2d 314 (2013) ( “Any fact that, by law, increases the penalty for a crime is an ‘element’
that must be submitted to the jury and found beyond a reasonable doubt.”).
6 United States v Haymond, 588 US ___; ___ S Ct ___; ___ L Ed 2d ___ (2019) (Docket
No. 17-1672) (opinion of Gorsuch, J.); slip op at 6. See also Blakely, 542 US at 308 (“[T]he
Sixth Amendment by its terms is . . . a reservation of jury power.”).
7 United States v Booker, 543 US 220; 125 S Ct 738; 160 L Ed 2d 621 (2005).

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4
the first brother further justified his sentence. Now imagine that the appellate
court reverses as excessive only the sentence of the nonracist brother. Given
the dual holdings of the appellate court, the racist has a valid Sixth
Amendment claim that his sentence was reasonable (and hence lawful) only
because of the judicial finding of his motive in selecting his victim.
Second, consider the common case in which the district court imposes
a sentence within an advisory Guidelines range that has been substantially
enhanced by certain judge-found facts. For example, the base offense level
for robbery under the Guidelines is 20, which, if the defendant has a criminal
history of I, corresponds to an advisory range of 33–41 months. If, however,
a judge finds that a firearm was discharged, that a victim incurred serious
bodily injury, and that more than $5 million was stolen, then the base level
jumps by 18, producing an advisory range of 235–293 months. When a judge
finds all of those facts to be true and then imposes a within-Guidelines
sentence of 293 months, those judge-found facts, or some combination of
them, are not merely facts that the judge finds relevant in exercising his
discretion; they are the legally essential predicate for his imposition of the
293-month sentence. His failure to find them would render the 293-month
sentence unlawful. That is evident because, were the district judge explicitly
to find none of those facts true and nevertheless to impose a 293-month
sentence (simply because he thinks robbery merits seven times the sentence
that the Guidelines provide) the sentence would surely be reversed as
unreasonably excessive.[8]
These hypotheticals illustrate that “for every given crime there is some maximum
sentence that will be upheld as reasonable based only on the facts found by the jury or
admitted by the defendant. Every sentence higher than that is legally authorized only by
some judge-found fact, in violation of the Sixth Amendment.”9 This is because, as stated
above, “The Sixth Amendment requires that ‘[a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum authorized by the facts
8 Rita v United States, 551 US 338, 371-373; 127 S Ct 2456; 168 L Ed 2d 203 (2007)
(Scalia, J., concurring) (citations omitted).
9 Id. at 372.

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5
established by a plea of guilty or a jury verdict must be admitted by the defendant or proved
to a jury beyond a reasonable doubt.’ ”10 As Justice Scalia explained in his dissenting
statement in Joseph Jones v United States:
The Sixth Amendment, together with the Fifth Amendment’s Due Process
Clause, “requires that each element of a crime” be either admitted by the
defendant, or “proved to the jury beyond a reasonable doubt.” Any fact that
increases the penalty to which a defendant is exposed constitutes an element
of a crime, and “must be found by a jury, not a judge.” We have held that a
substantively unreasonable penalty is illegal and must be set aside. It
unavoidably follows that any fact necessary to prevent a sentence from being
substantively unreasonable—thereby exposing the defendant to the longer
sentence—is an element that must be either admitted by the defendant or
found by the jury. It may not be found by a judge.[11]
While the Supreme Court has not yet expressly adopted (or rejected) Justice Scalia’s
Sixth Amendment analysis, 12 it appears that the Supreme Court has been moving toward a
10 Id. at 370, quoting Booker, 543 US at 244.
11 Joseph Jones v United States, 574 US ___, ___; 135 S Ct 8, 8; 190 L Ed 2d 279 (2014)
(Scalia, J., dissenting) (citations omitted). Justice Scalia contended that the Court should
“put an end to the unbroken string of cases disregarding the Sixth Amendment—or to
eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the
statutory maximum are substantively reasonable.” Id. at ___; 135 S Ct at 9. While I do
not necessarily disagree with Justice Scalia’s criticism of Alleyne, Alleyne, 570 US at 124
(Roberts, C.J., joined by Scalia, J., dissenting), and of substantive reasonableness review,
Rita, 551 US at 370 (Scalia, J., concurring in part), Alleyne and substantive reasonableness
review are the law of the land. See People v Lockridge, 498 Mich 358, 388; 870 NW2d
502 (2015) (stating that “the rule from Alleyne applies” to Michigan’s indeterminate
sentencing scheme); id. at 392 (stating that departure sentences “will be reviewed . . . for
reasonableness”).
12 Though, as Justice Scalia noted, the federal circuit courts have rejected this analysis.
Joseph Jones, 574 US at ___; 135 S Ct at 9 (Scalia, J., dissenting) (“Nonetheless, the Courts
of Appeals have uniformly taken our continuing silence to suggest that the Constitution
does permit otherwise unreasonable sentences supported by judicial factfinding, so long as
they are within the statutory range.”), citing United States v Benkahla, 530 F3d 300, 312

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6
more robust interpretation of the Sixth Amendment. In McMillan v Pennsylvania,13 the
Supreme Court summarily dismissed the defendant’s Sixth Amendment challenges to
judge-found facts affecting his sentence. However, after McMillan, the Supreme Court has
found multiple penal schemes in violation of the Sixth Amendment.14 As the majority
notes, McMillan is now all but overruled.15
As the above discussion makes clear, “any fact necessary to prevent a sentence from
being substantively unreasonable—thereby exposing the defendant to the longer
sentence—is an element that must be either admitted by the defendant or found by the jury.
(CA 4, 2008); United States v Hernandez, 633 F3d 370, 374 (CA 5, 2011); United States v
Ashqar, 582 F3d 819, 824-825 (CA 7, 2009); United States v Treadwell, 593 F3d 990,
1017-1018 (CA 9, 2010); United States v Redcorn, 528 F3d 727, 745-746 (CA 10, 2008).
This Court has not addressed this argument, which was not presented in either Lockridge,
498 Mich 358, or People v Steanhouse, 500 Mich 453; 902 NW2d 327 (2017).
13 McMillan v Pennsylvania, 477 US 79, 93; 106 S Ct 2411; 91 L Ed 2d 67 (1986).
14 Apprendi v New Jersey, 530 US 466, 490; 120 S Ct 2348; 147 L Ed 2d 435 (2000)
(“Other than the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt.”); Blakely, 542 US 296 (holding that the “exceptional” sentence that
resulted from the judge-found fact violated the Sixth Amendment); Alleyne, 570 US at 112
(“[A] fact increasing either end of the range produces a new penalty and constitutes an
ingredient of the offense.”); Haymond, 588 US at ___ (opinion by Gorsuch, J.); slip op at 1
(holding that the mandatory minimum imposed after the defendant violated the conditions
of his supervised release violated the Sixth Amendment).
15 See ante at 15 n 16; Haymond, 588 US at ___ (opinion by Gorsuch, J.); slip op at 9-10
(stating that Alleyne found “no basis in the original understanding of the Fifth and Sixth
Amendments for McMillan and Harris [v United States, 536 US 545; 122 S Ct 2406; 153
L Ed 2d 524 (2002),]” and “expressly overruled those decisions”).

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7
It may not be found by a judge.”16 As Justice Scalia seemed to recognize, the consideration
of acquitted conduct at sentencing is particularly at odds with this rule.17 Take, for
example, the instant case: defendant was charged with open murder, carrying a firearm
with unlawful intent, felon in possession of a firearm (felon-in-possession), and three
counts of felony-firearm. Defendant was convicted, as a fourth-offense habitual offender,
of felon-in-possession and second-offense felony-firearm, and acquitted of the other
charges. But the judge found, by a preponderance of the evidence, that defendant “was the
person who perpetrated the killing,” and the judge imposed a prison sentence of 240 to 400
months, a sentence far in excess of the guidelines minimum sentence range of 22 to 76
months. Such a significant departure would clearly not be reasonable based only on the
jury’s verdict that defendant was guilty of felon-in-possession and felony-firearm. 18 Thus,
the fact that defendant killed the victim was a “legally essential predicate for his imposition
of the . . . sentence.”19 Because the finding that defendant committed homicide exposed
him to a longer sentence, the Sixth Amendment requires that it be found by a jury or
16 Joseph Jones, 574 US at ___; 135 S Ct at 8 (Scalia, J., dissenting).
17 Id. at ___; 135 S Ct at 9 (lamenting the Court’s unwillingness to address the anomaly in
its caselaw and noting that the case at hand was “a particularly appealing case” in which to
do so “because not only did no jury convict these defendants of the offense the sentencing
judge thought them guilty of, but a jury acquitted them of that offense.”).
18 Steanhouse, 500 Mich at 459-460 (“[T]he proper inquiry when reviewing a sentence for
reasonableness is whether the trial court abused its discretion by violating the ‘principle of
proportionality’ set forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990),
‘which requires sentences imposed by the trial court to be proportionate to the seriousness
of the circumstances surrounding the offense and the offender.’ ”).
19 Rita, 551 US at 372 (Scalia, J., concurring).

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admitted by the defendant. Here, it was only found by a judge. Therefore, I would hold
that the sentence at issue violates the Sixth Amendment.
II. CONSIDERATION OF ACQUITTED CONDUCT MORE GENERALLY
While the above analysis would be sufficient to resolve this case, I have serious
concerns regarding whether acquitted conduct may ever be considered at sentencing
without violating the Sixth Amendment. These concerns are based on the history of the
jury and the Supreme Court’s Sixth Amendment jurisprudence.
A. THE HISTORICAL IMPORTANCE OF THE JURY
“[T]he scope of the constitutional jury right must be informed by the historical role
of the jury at common law.”20 As the Supreme Court explained in Apprendi v New Jersey:21
We do not suggest that trial practices cannot change in the course of centuries
and still remain true to the principles that emerged from the Framers’ fears
“that the jury right could be lost not only by gross denial, but by erosion.”
But practice must at least adhere to the basic principles undergirding the
requirements of trying to a jury all facts necessary to constitute a statutory
offense, and proving those facts beyond reasonable doubt.
Practice must adhere to these principles “[b]ecause the Constitution’s guarantees cannot
mean less today than they did the day they were adopted . . . .” 22 Thus, while some trial
practices may have changed since the founding, a historical inquiry provides important
20 Ice, 555 US at 170.
21 Apprendi, 530 US at 483-484.
22 Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 7.

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evidence as to what “intelligible content”23 we should give to the Sixth Amendment right
to a jury.
As an initial matter, the importance of the jury cannot be overstated. Blackstone
referred to the jury as the “sacred bulwark of the nation,”24 and he described the trial by
jury as
a trial that hath been used time out of mind in this nation, and seems to have
been co-eval with the first civil government thereof. Some authors have
endeavoured to trace the original of juries up as high as the Britons
themselves, the first inhabitants of our island; but certain it is, that they were
in use among the earliest Saxon colonies . . . . [Its] establishment however
and use, in this island, of what date soever it be, . . . was always so highly
esteemed and valued by the people, that no conquest, no change of
government, could ever prevail to abolish it.[25]
At the time of the founding, Alexander Hamilton noted, “The friends and adversaries of
the plan of the convention, if they agree in nothing else, concur at least in the value they
set upon the trial by jury: Or if there is any difference between them it consists in this; the
former regard it as a valuable safeguard to liberty, the latter represent it as the very
palladium of free government.”26 More recently, the Supreme Court has referred to the
23 Blakely, 542 US at 305 (noting “the need to give intelligible content to the right of jury
trial”); Apprendi, 530 US at 499 (Scalia, J., concurring) (“And the guarantee that ‘[i]n all
criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury,’
has no intelligible content unless it means that all the facts which must exist in order to
subject the defendant to a legally prescribed punishment must be found by the jury.”).
24 People v Cain, 498 Mich 108, 129; 869 NW2d 829 (2015) (V IVIANO , J., dissenting),
quoting 4 Blackstone, Commentaries on the Laws of England, p *350.
25 3 Blackstone, Commentaries on the Laws of England, pp **349-350.
26 The Federalist No. 83 (Hamilton) (Hamilton ed, 1864), p 614. Or as Thomas Jefferson
asserted, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which

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right to trial by jury “ ʻas the great bulwark of [our] civil and political liberties,’ ” intended
“ ʻ[t]o guard against a spirit of oppression and tyranny on the part of rulers . . . .’ ” 27
The role of juries in sentencing has evolved over time, such that modern sentencing
is very different than it was at the time of the founding. Unlike modern juries, colonial
juries played a role in sentencing. This was because several crimes were capital offenses,
and thus, a guilty verdict necessarily dictated the punishment.28 Consequently, practically,
a judge often had no discretion in sentencing:
a government can be held to the principles of its constitution.” 3 Washington, The Writings
of Thomas Jefferson (New York: Derby & Jackson, 1859), p 71.
27 Apprendi, 530 US at 466, quoting 2 Story, Commentaries on the Constitution of the
United States (4th ed), pp 540-541. See also Haymond, 588 US at ___ (opinion of Gorsuch,
J.); slip op at 5 (“Together with the right to vote, those who wrote our Constitution
considered the right to trial by jury ‘the heart and lungs, the mainspring and the center
wheel’ of our liberties, without which ‘the body must die; the watch must run down; the
government must become arbitrary.’ ”) (citation omitted); Sullivan v Louisiana, 508 US
275, 281; 113 S Ct 2078; 124 L Ed 2d 182 (1993) (describing trial by jury as a “ ‘basic
protectio[n]’ whose precise effects are unmeasurable, but without which a criminal trial
cannot reliably serve its function”), quoting Rose v Clark, 478 US 570, 577; 106 S Ct 3101;
92 L Ed 2d 460 (1986) (alteration in original); Amar, The Bill of Rights: Creation and
Reconstruction (New Haven: Yale University Press, 1998), p 96 (“If we seek a
paradigmatic image underlying the original Bill of Rights, we cannot go far wrong in
picking the jury.”).
28 Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury
Trial, 71 Ohio St L J 935, 939 (2010) (“While scholars disagree about the details, it is
reasonable to conclude that the colonial jury was a de facto and, to a degree, a de jure
sentencer. It was a de facto sentencer because of the nature of the criminal law, on the one
hand, and the process by which it was selected, on the other. Many crimes were capital
offenses. The result was necessarily binary and easy to understand—guilt and death or not
guilty and freedom. Scalable punishments, punishments involving a term of years, were
not common until the end of the eighteenth century with the growth of penitentiaries.”);
Spooner, An Essay on the Trial by Jury (Boston: Bela Marsh, 1852), p 97 (“[T]he principle
of Magna Carta, that a man should be sentenced only by his peers, was in force, and acted
upon as law, in England, so lately as 1725, (five hundred years after Magna Carta,) . . . .”).

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[W]ith respect to the criminal law of felonious conduct, “the English trial
judge of the later eighteenth century had very little explicit discretion in
sentencing. The substantive criminal law tended to be sanction-specific; it
prescribed a particular sentence for each offense. The judge was meant
simply to impose that sentence (unless he thought in the circumstances that
the sentence was so inappropriate that he should invoke the pardon process
to commute it).” As Blackstone, among many others, has made clear, “[t]he
judgment, though pronounced or awarded by the judges, is not their
determination or sentence, but the determination and sentence of the law.” [29]
However, on the rare occasions when a penalty was not set by law, judges had discretion
to take into account a wide variety of factors in sentencing.30
Though I am aware of no source or scholarship specifically addressing whether
judges could consider acquitted conduct at sentencing, it is true that the Supreme Court
“has repeatedly sought to guard the historic role of the jury . . . .”31 But disregarding an
See also Williams v New York, 337 US 241, 247-248; 69 S Ct 1079; 93 L Ed 1337 (1949)
(“Undoubtedly the New York statutes emphasize a prevalent modern philosophy of
penology that the punishment should fit the offender and not merely the crime. The belief
no longer prevails that every offense in a like legal category calls for an identical
punishment without regard to the past life and habits of a particular offender. This whole
country has traveled far from the period in which the death sentence was an automatic and
commonplace result of convictions—even for offenses today deemed trivial.”) (citation
omitted).
29 Apprendi, 530 US at 479-480 (citation omitted).
30 Williams, 337 US at 246 (“[B]oth before and since the American colonies became a
nation, courts . . . practiced a policy under which a sentencing judge could exercise a wide
discretion in the sources and types of evidence used to assist him in determining the kind
and extent of punishment to be imposed within limits fixed by law.”); Apprendi, 530 US
at 481 (“We have often noted that judges in this country have long exercised discretion of
this nature in imposing sentence within statutory limits in the individual case.”) (emphasis
omitted).
31 Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 21.

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acquittal at sentencing “trivializes ‘legal guilt’ or legal innocence.”32 Unlike uncharged
conduct, which the jury has only not “authorize[d],” consideration of acquitted conduct
entails consideration of “facts of which the jury expressly disapproved.”33 In a related
context, Justice Neil Gorsuch explained the impact of similar Sixth Amendment violations:
“Nor did the absence of a jury’s finding beyond a reasonable doubt only infringe the rights
of the accused; it also divested the ʻ “people at large” ’—the men and women who make
up a jury of a defendant’s peers—of their constitutional authority to set the metes and
bounds of judicially administered criminal punishments.”34 And the “people at large”
perceive the slight. As one frustrated juror wrote:
It seems to me a tragedy that one is asked to serve on a jury, serves,
but then finds their work may not be given the credit it deserves. We, the
jury, all took our charge seriously. We virtually gave up our private lives to
devote our time to the cause of justice, and it is a very noble cause as you
know, sir. We looked across the table at one another in respect and in
sympathy. We listened, we thought, we argued, we got mad and left the
room, we broke, we rested that charge until tomorrow, we went on.
Eventually, through every hour-long tape of a single drug sale, hundreds of
pages of transcripts, ballistics evidence, and photos, we delivered to you our
verdicts.
32 United States v Pimental, 367 F Supp 2d 143, 152 (D Mass, 2005); United States v
Ibanga, 454 F Supp 2d 532, 541 (E D Va, 2006), sentence vacated and case remanded, 271
F Appx 298 (CA 4, 2008) (“A sentence that repudiates the jury’s verdict undermines the
juror’s role as both a pupil and participant in civic affairs. The juror as pupil learns that
the law does not value the results of his or her participation in the judicial process and may
reject it at will. The disparity in the sentencing ranges with and without the inclusion of
acquitted conduct effectively ‘[drives] a wedge between the community’s sense of
appropriate punishment and the criminal sanction inflicted.’ ”) (citation omitted).
33 Pimental, 367 F Supp 2d at 152.
34 Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 11.

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What does it say to our contribution as jurors when we see our
verdicts, in my personal view, not given their proper weight. It appears to
me that these defendants 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. Had they
shown us hard evidence, that might have been the outcome, but that was not
the case. That is how you instructed your jury in this case to perform and for
good reason.[35]
How can the jury continue to be “ ʻthe great bulwark of [our] civil and political liberties’ ” 36
when an acquittal means only that a defendant will not formally be sentenced for the crime
but may, in reality, spend far longer in prison because a judge finds by a preponderance of
the evidence that the defendant, in fact, committed the crime of which he or she was
acquitted by the jury?37 Consideration of acquitted conduct at sentencing diminishes the
historical role of the jury.
35 United States v Canania, 532 F3d 764, 778 n 4 (CA 8, 2008) (Bright, J., concurring)
(quotation marks omitted).
36 Apprendi, 530 US at 477 (citation omitted).
37 It is worth noting that, although the federal circuits have yet to agree, see note 12 of this
opinion, several judges and commentators have expressed their vigorous opposition to the
consideration of acquitted conduct at sentencing on Sixth Amendment grounds. See, e.g.,
Pimental, 367 F Supp 2d at 152-153 (opinion of Gertner, J.) (“[W]hen a court considers
acquitted conduct it is expressly considering facts that the jury verdict not only failed to
authorize; it considers facts of which the jury expressly disapproved. . . . To tout the
importance of the jury in deciding facts, even traditional sentencing facts, and then to
ignore the fruits of its efforts makes no sense—as a matter of law or logic.”); Ibanga, 454
F Supp 2d at 536 (opinion of Kelley, J.) (“Sentencing a defendant to time in prison for a
crime that the jury found he did not commit is a Kafka-esque result.”); United States v
Faust, 456 F3d 1342, 1350 (CA 11, 2006) (Barkett, J., concurring) (“Even though [the
defendant]’s maximum possible sentence was not increased by the sentencing judge’s
independent findings—three separate findings of actual, criminal conduct—they certainly
do change the quantity and quality of the stigma he faces. . . . [E]ven more importantly,
“to consider acquitted conduct trivializes ‘legal guilt’ or ‘legal innocence’ . . . .”); United
States v White, 551 F3d 381, 392 (CA 6, 2008) (Merritt, J., dissenting) (“[T]he use of

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B. JURY NULLIFICATION
Another historical consideration also supports this conclusion. Juries have
historically protected defendants from prosecutorial overreach. “The Framers envisioned
the Sixth Amendment as a protection for defendants from the power of the Government.”38
As Chief Justice John Roberts stated: “The question here is about the power of judges, not
juries. . . . [T]he historical understanding of the jury right [is] as a defense from judges,
acquitted conduct at sentencing defies the Constitution, our common law heritage, the
Sentencing Reform Act, and common sense.”); Canania, 532 F3d at 777 (Bright, J.,
concurring) (“[T]he unfairness perpetuated by the use of ‘acquitted conduct’ at sentencing
in federal district courts is uniquely malevolent.”); United States v Bell, 420 US App DC
387, 389; 808 F3d 926 (2015) (Kavanaugh, J., concurring) (“Allowing judges to rely on
acquitted or uncharged conduct to impose higher sentences than they otherwise would
impose seems a dubious infringement of the rights to due process and to a jury trial. If you
have a right to have a jury find beyond a reasonable doubt the facts that make you guilty,
and if you otherwise would receive, for example, a five-year sentence, why don’t you have
a right to have a jury find beyond a reasonable doubt the facts that increase that five-year
sentence to, say, a 20-year sentence?”); United States v Bagcho, ___ US App DC ___, ___;
923 F3d 1131, 1141 (2019) (Millett, J., concurring) (“It stands our criminal justice system
on its head to hold that even a single extra day of imprisonment can be imposed for a crime
that the jury says the defendant did not commit.”); Outlaw, Giving an Acquittal Its Due:
Why a Quartet of Sixth Amendment Cases Means the End of United States v. Watts and
Acquitted Conduct Sentencing, 5 U Denv Crim L Rev 189, 190 (2015); Yalinçak, Critical
Analysis of Acquitted Conduct Sentencing in the U.S.: “Kafka-Esque,” “Repugnant,”
“Uniquely Malevolent” and “Pernicious”?, 54 Santa Clara L Rev 675, 721 (2014); Ngov,
Judicial Nullification of Juries: Use of Acquitted Conduct at Sentencing, 76 Tenn L Rev
235 (2009).
38 Alleyne, 570 US at 124 (Roberts, C.J., dissenting); see also Blakely, 542 US at 308
(“[T]he Sixth Amendment by its terms is not a limitation on judicial power, but a
reservation of jury power. It limits judicial power only to the extent that the claimed
judicial power infringes on the province of the jury.”).

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not a defense of judges. See Apprendi, [530 US at 498 (Scalia, J., concurring)] (‘Judges,
it is sometimes necessary to remind ourselves, are part of the State’).”39
Key to their role as “[p]opulist [p]rotectors,” 40 juries found both the facts and the
law.41 Chief Justice John Jay, in Georgia v Brailsford,42 summarized the jury’s power:
It may not be amiss, here, gentlemen, to remind you of the good old
rule, that on questions of fact, it is the province of the jury, on questions of
law, it is the province of the court, to decide. But it must be observed, that
by the same law, which recognizes this reasonable distribution of
39 Alleyne, 570 US at 129-130 (Roberts, C.J., dissenting).
40 The Bill of Rights: Creation and Reconstruction, p 83.
41 Amar, The Bill of Rights as a Constitution, 100 Yale L J 1131, 1193 (1991) (“[I]t was
widely believed in late eighteenth-century America that the jury, when rendering a general
verdict, could take upon itself the right to decide both law and fact.”); Smith, The Historical
and Constitutional Contexts of Jury Reform, 25 Hofstra L Rev 377, 446-448 (1996) (“In
contrast to the traditional English jury, American juries were often granted the authority to
resolve issues of law as well as issues of fact. This authority was recognized in
constitutions, statutes, and judicial decisions following the Revolution. Furthermore, it was
emphasized in a variety of celebrated eighteenth century cases involving political crimes
during English rule of the colonies.”); Warshawsky, Opposing Jury Nullification: Law,
Policy, and Prosecutorial Strategy, 85 Geo L J 191, 198 (1996) (“Although criminal juries
in England . . . possessed the raw power to ignore the law as given by the judge, they never
acquired the legal right to do so. In America, by contrast, the right of the jury independently
to decide questions of law was widely recognized until well into the nineteenth century.”);
Kemmitt, Function Over Form: Reviving the Criminal Jury’s Historical Role as a
Sentencing Body, 40 U Mich J L Reform 93, 95 (2006) (“The version of the jury adopted
by the Founders largely mirrored the English archetype, but included a few structural
modifications. While the division of labor between judge and jury remained the same, the
American version added the general verdict and endowed jurors with law-finding
powers. . . . The adoption of a hybrid jury—one concerned with both fact-finding and
sentencing—reflected the Founders’ vision that the jury should serve as a bulwark against
government oppression and a check against an unresponsive central government.”).
42 Georgia v Brailsford, 3 US (3 Dall) 1, 4; 1 L Ed 483 (1794).

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jurisdiction, you have, nevertheless, a right to take upon yourselves to judge
of both, and to determine the law as well as the fact in controversy.
An important way in which a jury might decide the law was by jury nullification. Jury
nullification is “[a] jury’s knowing and deliberate rejection of the evidence or refusal to
apply the law either because the jury wants to send a message about some social issue that
is larger than the case itself or because the result dictated by law is contrary to the jury’s
sense of justice, morality, or fairness.”43 Juries used jury nullification to ameliorate the
effects of what they perceived to be unjust laws:
The potential or inevitable severity of sentences was indirectly checked by
juries’ assertions of a mitigating power when the circumstances of a
prosecution pointed to political abuse of the criminal process or endowed a
criminal conviction with particularly sanguinary consequences. This power
to thwart Parliament and Crown took the form not only of flat-out acquittals
in the face of guilt but of what today we would call verdicts of guilty to lesser
included offenses, manifestations of what Blackstone described as “pious
perjury” on the jurors’ part.[44]
The power of jury nullification was held in high esteem at the time of the founding—
Benjamin Franklin, John Adams, and Thomas Jefferson all spoke of jury nullification with
43 Black’s Law Dictionary (11th ed); see also People v Demers, 195 Mich App 205, 206;
489 NW2d 173 (1992) (“Jury nullification is the power to dispense mercy by nullifying the
law and returning a verdict less than that required by the evidence.”).
Jury nullification is sometimes also referred to as jury mitigation. See Function
Over Form, 40 U Mich J L Reform at 100 (“Jurors were unashamed of using their powers
of mitigation and frequently returned partial verdicts with a less serious charge . . . .”).
44 Nathaniel Jones v United States, 526 US 227, 245; 119 S Ct 1215; 143 L Ed 2d 311
(1999). See also Apprendi, 530 US at 480 n 5 (“[J]uries devised extralegal ways of
avoiding a guilty verdict, at least of the more severe form of the offense alleged, if the
punishment associated with the offense seemed to them disproportionate to the seriousness
of the conduct of the particular defendant.”).

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approbation.45 The Founders took steps to further insulate American juries and ensure that
they could practice jury nullification:
[W]hen creating their own legal institutions, the colonists endorsed the roles
played by the English jury—namely, mitigator of unduly harsh sentences and
populist check on a potentially unresponsive central government—but cast
aside its inelegant form. In so doing, the colonists helped to insulate the
process of jury-based mitigation from criticism. In England, the blatant
manipulation of facts by criminal juries led critics to target the jury’s function
as mitigator. But in the United States, such tensions were minimized through
reliance on the general verdict and by granting the jury the power to
determine the law.[46]
Understandably, there has been considerable debate about whether jury nullification
is desirable.47 Indeed, courts have consistently held that defendants are not entitled to a
45 Parmenter, Nullifying the Jury: “The Judicial Oligarchy” Declares War on Jury
Nullification, 46 Washburn L J 379, 428 n 56 (2007) (“John Adams argued, ‘It is not only
[the juror’s] right, but his duty . . . to find the verdict according to his own best
understanding, judgment, and conscience, though in direct opposition to the direction of
the court.’ Benjamin Franklin’s Pennsylvania Gazette commented that if jury nullification
is not the law, ‘it is better than law, it ought to be law, and will always be law wherever
justice prevails.’ Thomas Jefferson remarked, ‘Were I called upon to decide whether the
people had best be omitted in the Legislative or Judiciary department, I would say it is
better to leave them out of the Legislative. The execution of the laws is more important
than the making [of] them.’ ”) (citations omitted; alterations in original).
46 Function Over Form, 40 U Mich J L Reform at 103; see also Barkow, Recharging the
Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing, 152 U
Penn L Rev 33, 36 (2003) (“This power to mitigate or nullify the law in an individual case
is no accident. It is part of the constitutional design—and has remained part of that design
since the Nation’s founding.”).
47 Compare McKnight, Jury Nullification as a Tool to Balance the Demands of Law and
Justice, 2013 BYU L Rev 1103, 1110 (2013), and Opposing Jury Nullification, 85 Geo L
J 191.

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jury instruction regarding nullification.48 This Court stated in People v Bailey, 49 “The jury
‘has the power to acquit on bad grounds, because the government is not allowed to appeal
from an acquittal by a jury. But jury nullification [like the jury’s ability to convict a
defendant of a lesser crime than the evidence proves] is just a power, not also a
right . . . .’ ”50 Yet, though it is only a power, it is a well-established power that this Court
has consistently recognized—“Juries are not held to any rules of logic nor are they required
to explain their decisions. The ability to convict or acquit another individual of a crime is
a grave responsibility and an awesome power. An element of this power is the jury’s
capacity for leniency.”51 Regardless of whether jury nullification is good policy, or
48 See, e.g., Sparf v United States, 156 US 51, 99; 15 S Ct 273; 39 L Ed 343 (1895); United
States v Krzyske, 836 F2d 1013, 1021 (CA 6, 1988) (“The right of a jury, as a buffer
between the accused and the state, to reach a verdict despite what may seem clear law must
be kept distinct from the court’s duty to uphold the law and to apply it impartially. . . . To
have given an instruction on nullification would have undermined the impartial
determination of justice based on law.”); Demers, 195 Mich App at 208.
49 People v Bailey, 451 Mich 657; 549 NW2d 325 (1996), amended on denial of reh’g 453
Mich 1204 (1996).
50 Id. at 671 n 10, quoting United States v Kerley, 838 F2d 932, 938 (CA 7, 1988)
(alterations in original). See also People v Ward, 381 Mich 624, 628; 166 NW2d 451
(1969) (“A jury may have the power but it has no right to disregard the court’s
instructions.”).
51 People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980); Hamilton v People, 29
Mich 173, 189-190 (1874) (“It is true that juries in criminal cases cannot properly find a
conviction against their consciences. It is also true that they cannot be questioned or held
responsible upon their verdict, nor called on to explain its reasons. Whether those reasons
are based on a doubt or disbelief of evidence, or on a rejection of the exposition of law
given by the court, they are equally beyond review.”). See also United States v Dougherty,
154 US App DC 76, 473 F2d 1113 (1972) (“The pages of history shine on instances of the

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whether there is a right to jury nullification, the fact remains that juries at the time of the
founding and at present have the power to exercise jury nullification.
But this power is rendered nearly meaningless if consideration of acquitted conduct
is permissible. If a jury finds a defendant guilty of a lesser offense and acquits him or her
of a greater offense, such jury nullification loses nearly all practical effect if the judge can
consider the acquitted conduct at sentencing. As Judge Gilbert Merritt explained:
Allowing the use of acquitted conduct at sentencing also eviscerates
the jury’s longstanding power of mitigation, a close relative of the power of
jury nullification. . . . A jury cannot mitigate the harshness of a sentence it
deems excessive if a sentencing judge may use acquitted conduct to sentence
the defendant as though he had been convicted of the more severe offense.[52]
Instead of acquitting a defendant of certain offenses and convicting of others, a jury would
have to exercise jury nullification by the more extreme path of acquitting the defendant on
all counts. Consideration of acquitted conduct at sentencing appears to conflict with the
Founders’ views on jury nullification, given that it would severely limit that check on the
government’s power.
C. DISTINGUISHING OFFENSE ELEMENTS FROM SENTENCING FACTORS
I also believe that the consideration of acquitted conduct at sentencing leads to
anomalous results. 53 Specifically, it involves relabeling a particular fact from an element
jury’s exercise of its prerogative to disregard uncontradicted evidence and instructions of
the judge.”).
52 White, 551 F3d at 394 (Merritt, J., dissenting).
53 Faust, 456 F3d at 1351 (Barkett, J., concurring) (“The majority believes that, in a single
proceeding, Faust’s possession of ecstacy [sic] may be both an element of a crime and a

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of a crime at the trial stage, which the jury must find beyond a reasonable doubt, to a mere
“sentencing factor” at the sentencing stage, which the judge can find by a preponderance
of the evidence. In McMillan v Pennsylvania,54 the Supreme Court distinguished for the
first time between an element of an offense and “a sentencing factor that comes into play
only after the defendant has been found guilty . . . beyond a reasonable doubt.” “Much
turns on the determination that a fact is an element of an offense rather than a sentencing
consideration, given that elements must be charged in the indictment, submitted to a jury,
and proven by the Government beyond a reasonable doubt.”55 And, as we have noted,
“The failure to have the jury find an element establishing ‘a distinct and aggravated crime,’
not the resulting sentence, is the constitutional deficiency[.]” 56
The United States Supreme Court has provided guidance on several occasions
regarding how to distinguish between a sentencing factor and an element. The Supreme
Court has looked to a variety of factors, including tradition, statutory structure, common
practice, the risk of unfairness if a fact were to be decided by a jury, legislative history, and
the effect the fact would have on the sentence. For example, in Nathaniel Jones v United
sentencing fact provable by a mere preponderance of the evidence. This anomaly is hardly
justified . . . .”).
54 McMillan, 477 US at 86.
55 Nathaniel Jones, 526 US at 232. See also Apprendi, 530 US at 500 (“[I]n order for a
jury trial of a crime to be proper, all elements of the crime must be proved to the jury
(and . . . proved beyond a reasonable doubt). Thus, it is critical to know which facts are
elements.”) (citations omitted).
56 Lockridge, 498 Mich at 384 (citations omitted).

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States,57 the question was whether serious bodily injury was an element defining an
aggravated form of the underlying crime or a sentencing factor. The Court considered the
structure of the statute as well as other provisions, reasoning that Congress likely did not
intend for “serious bodily injury” to be an element in certain offenses but only a sentencing
factor in the offense in the case at hand.58 The Court also looked to similar state statutes,
which used “serious bodily injury” as an element of an offense rather than as a sentencing
factor.59 Thus, the Court held that serious bodily injury was an element.60 Similarly, in
Castillo v United States, 61 the Court turned to the statutory structure, tradition, the risk of
unfairness if decided by a jury, legislative history, and the effects that the factual finding
would have on the sentence. Notably, as for tradition, Castillo noted that “[t]raditional
sentencing factors often involve either characteristics of the offender, such as recidivism,
or special features of the manner in which a basic crime was carried out (e.g., that the
defendant abused a position of trust or brandished a gun).”62
57 Nathaniel Jones, 526 US 227.
58 Id. at 236.
59 Id. at 236-237.
60 Id. at 239, 251-252.
61 Castillo v United States, 530 US 120; 120 S Ct 290; 147 L Ed 2d 94 (2000).
62 Id. at 126. See also Almendarez-Torres v United States, 523 US 224, 228; 118 S Ct
1219; 140 L Ed 2d 350 (1998) (“We therefore look to the statute before us and ask what
Congress intended. Did it intend the factor that the statute mentions, the prior aggravated
felony conviction, to help define a separate crime? Or did it intend the presence of an
earlier conviction as a sentencing factor, a factor that a sentencing court might use to
increase punishment? In answering this question, we look to the statute’s language,

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22
The Court further refined the definition of an element in Apprendi v New Jersey63
and Alleyne v United States.64 In Apprendi, the Supreme Court noted the link between an
element of the crime and punishment: “Other than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”65 In Alleyne, the Supreme
Court extended Apprendi’s holding to judge-found facts that increased the mandatory
minimum, not just the maximum as Apprendi had held—“a fact increasing either end of
the range produces a new penalty and constitutes an ingredient of the offense.” 66 But
Alleyne noted that it did not restrict fact-finding necessary to exercising discretion in setting
a sentence within legal limits; it only required that facts that increase the penalty be
structure, subject matter, context, and history—factors that typically help courts determine
a statute’s objectives and thereby illuminate its text.”).
63 Apprendi, 530 US 466.
64 Alleyne, 570 US 99.
65 Apprendi, 530 US at 490. See also Nathaniel Jones, 526 US at 252 (Stevens, J.
concurring) (“[I]t is unconstitutional for a legislature to remove from the jury the
assessment of facts that increase the prescribed range of penalties to which a criminal
defendant is exposed.”); id. at 253 (Scalia, J., concurring) (“I set forth as my considered
view, that it is unconstitutional to remove from the jury the assessment of facts that alter
the congressionally prescribed range of penalties to which a criminal defendant is
exposed.”); Apprendi, 530 US at 503 (Thomas, J., concurring) (determining that the value
of stolen property “was an element [of larceny] because punishment varied with value”);
Blakely, 542 US at 304 (“When a judge inflicts punishment that the jury’s verdict alone
does not allow, the jury has not found all the facts ‘which the law makes essential to the
punishment,’ Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.”).
66 Alleyne, 570 US at 112. See also Apprendi, 530 US at 501 (Thomas, J., concurring)
(“This authority establishes that a ‘crime’ includes every fact that is by law a basis for
imposing or increasing punishment . . . .”).

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23
submitted to a jury—“Any fact that, by law, increases the penalty for a crime is an
‘element’ that must be submitted to the jury and found beyond a reasonable doubt.”67
At the trial stage, each charged crime consists of its requisite elements. These
elements must be found by a jury beyond a reasonable doubt.68 But, when acquitted
conduct is considered, the rug is pulled out from under a defendant at the sentencing stage.
The defendant then discovers that the elements that the jury found were not established
beyond a reasonable doubt are still going to be considered against him or her; they are
suddenly no longer elements but now reappear as sentencing factors. 69
In other words, if the prosecutor fails to establish a fact as an element at trial, the
prosecutor gets a second bite at the apple: if the prosecutor can establish the fact by a
preponderance of the evidence, then the fact can still dramatically affect the defendant’s
sentence. Take, for example, the instant case—though defendant was acquitted of open
murder, the judge found by a preponderance of the evidence at sentencing that defendant
had killed the victim, i.e., had committed the homicide. And on that basis, the trial court
sentenced him to 240 to 400 months in prison, i.e., a minimum sentence more than three
times greater than the upper limit of his guidelines minimum sentence range of 76 months.
67 Alleyne, 570 US at 103.
68 Nathaniel Jones, 526 US at 232.
69 I note that the Supreme Court has rejected attempts to evade the Sixth Amendment by
merely changing a label. Haymond, 588 US at ___ (opinion of Gorsuch, J.); slip op at 12
(“Our precedents, Apprendi, Blakely, and Alleyne included, have repeatedly rejected efforts
to dodge the demands of the Fifth and Sixth Amendments by the simple expedient of
relabeling a criminal prosecution a ‘sentencing enhancement.’ ”).

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24
But treating a finding that defendant killed the victim as a sentencing factor is
counterintuitive. Applying the analysis from Nathaniel Jones and Castillo, it cannot
seriously be contended that killing the victim, i.e., causing the victim’s death, would be a
mere sentencing factor. Unsurprisingly, tradition70 and common practice71 indicate that
causing the death of the victim is an element of a crime. And as is evidenced by the fact
that the jury was already tasked with deciding whether defendant had committed open
murder, it does not risk unfairness to have a jury decide whether the defendant killed the
victim. All these considerations support the rather uncontroversial notion that killing the
victim is an element of a crime rather than a mere sentencing factor. The important
distinction that the United States Supreme Court has identified between offense elements
and sentencing factors is much ado about nothing if a prosecutor can convert an offense
70 Blackstone defined manslaughter as “the unlawful killing of another without malice,
either express or implied; which may be either voluntarily, upon a sudden heat, or
involuntarily, but in the commission of some unlawful act,” and murder as “ ʻwhen a person
of sound memory and discretion unlawfully killeth any reasonable creature in being, and
under the king’s peace, with malice aforethought, either express or implied.’ ”
4 Blackstone, Commentaries on the Laws of England, pp **191, 195 (citation omitted).
71 Many states have adopted the Model Penal Code in whole or in part. Under the Model
Penal Code, criminal homicide—which can constitute murder, manslaughter, and negligent
homicide depending on a defendant’s mens rea—occurs when a person “causes the death
of another human being,” i.e., kills another human being. Model Penal Code, § 210.1
(2018); Merriam-Webster’s Collegiate Dictionary (11th ed) (defining “kill,” in relevant
part, as to “cause the death of”). Also, our Legislature and Supreme Court have deemed
killing an element of any of the forms of murder or manslaughter for which defendant could
have been convicted. MCL 750.316 (defining first-degree murder); People v Mendoza,
468 Mich 527, 534; 664 NW2d 685 (2003) (defining second-degree murder under MCL
750.317 as including, in relevant part, “(1) death, (2) caused by defendant’s act”); id. at
535 (defining voluntary manslaughter, in relevant part, as “ ‘[t]he act of killing’ ”) (citation
omitted); id. at 536 (defining involuntary manslaughter to include “killing”).

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25
element (requiring proof beyond a reasonable doubt) to a sentencing factor (requiring proof
by a preponderance of the evidence), resulting in a sentence similar to the one the defendant
would have received if he or she had been convicted of the greater crime. 72 This, too,
counsels against consideration of acquitted conduct at sentencing.
D. DIFFERENT BURDENS OF PROOF DO NOT RENDER CONSIDERATION OF
ACQUITTED CONDUCT COMPATIBLE WITH AN ACQUITTAL
Proponents of the use of acquitted conduct argue that a judicial finding of guilt is
not necessarily incompatible with a jury acquittal because different burdens of proof are
involved in each determination. In other words, the proponents argue that acquittals are
not proclamations of innocence but only findings that there was not proof of guilt beyond
a reasonable doubt.73 I find this argument unpersuasive. First, while an acquittal might
mean that a jury was convinced by a preponderance of the evidence but not beyond a
reasonable doubt, that is not certain; it is also possible that a jury acquitted believing that
the evidence did not meet even the lower preponderance-of-the-evidence standard.74 The
72 This is contrary to the statement that “[m]uch turns on the determination that a fact is an
element of an offense rather than a sentencing consideration . . . .” Nathaniel Jones, 526
US at 232.
73 See, e.g., post at 3-4 (“To the extent that the majority’s position implies that a sentencing
court’s consideration of conduct underlying an acquitted charge directly contradicts a
jury’s acquittal decision, there is no logical anomaly in the trial court making a factual
finding that may have been rejected by the jury at trial. An acquittal means only that the
jury held a reasonable doubt as to the defendant’s guilt of that crime, not that the underlying
conduct did not occur.”); Watts, 519 US at 156-157.
74 Doerr, Not Guilty? Go to Jail. The Unconstitutionality of Acquitted-Conduct Sentencing,
41 Colum Hum Rts L Rev 235, 261-262 (2009) (“Allowing a judge to enhance a
defendant’s sentence because the jury ‘has not said that the defendant is innocent, either’
eviscerates the policy and purpose of the Sixth Amendment jury-trial guarantee, especially

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26
prosecutor should not receive the benefit of this ambiguity. Second, the logic that there
might be evidence beyond a preponderance but not beyond a reasonable doubt skirts the
issue. As Judge Patricia Millett explained:
The problem with relying on that distinction in this setting is that the whole
reason the Constitution imposes that strict beyond-a-reasonable-doubt
standard is that it would be constitutionally intolerable, amounting “to a lack
of fundamental fairness,” for an individual to be convicted and then
“imprisoned for years on the strength of the same evidence as would suffice
in a civil case.” In re Winship, [397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d
368 (1970)]. In other words, proof beyond a reasonable doubt is what we
demand from the government as an indispensable precondition to depriving
an individual of liberty for the alleged conduct. Constructing a regime in
which the judge deprives the defendant of liberty on the basis of the very
same factual allegations that the jury specifically found did not meet our
constitutional standard for a deprivation of liberty puts the guilt and
sentencing halves of a criminal case at war with each other.[75]
For this reason, finding elements of a crime only by a preponderance of the evidence is
unconstitutional, even if there is a possibility that it is logically consistent with an acquittal.
Moreover, it is important to keep in mind the practical reality of sentencing.
According to the Supreme Court, “The dispositive question . . . ‘is one not of form, but of
effect.’ ” 76 The reality is that when judges find by a preponderance of the evidence that a
defendant committed the conduct for which he was acquitted, that defendant can, and often
because an acquittal is the only action a jury can take to absolve a defendant of guilt. . . .
The proper solution to this problem is not to ignore the fact that a jury’s verdict of acquittal
is ambiguous and punish the defendant by interpreting that verdict as ‘maybe innocent.’ ”).
75 Bell, 420 US App DC at 391 (Millett, J., concurring).
76 Ring v Arizona, 536 US 584, 602; 122 S Ct 2428; 153 L Ed 2d 556 (2002), quoting
Apprendi, 530 US at 494.

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27
does, serve a longer prison sentence because of it.77 But this seems counterintuitive—“In
effect, juries rule on ‘legal guilt, guilt determined by the highest standard of proof we know,
beyond a reasonable doubt. And when a jury acquit[s] a defendant based on that standard,
one would have expected no additional criminal punishment would follow.’ ”78 In addition
to a longer sentence, the defendant will also face additional stigma.79 Regardless of
whether an acquittal and consideration of acquitted conduct are logically inconsistent, the
practical reality of sentencing calls into question the constitutionality of relying on
acquitted conduct.
III. CONCLUSION
Although I agree with the majority that due process precludes consideration of
acquitted conduct at sentencing under a preponderance-of-the-evidence standard, I believe
it important to point out that defendant’s sentence also violates the Sixth Amendment
77 Bell, 420 US App DC at 392 (Millett, J., concurring) (“The other explanation commonly
proffered is that, as long as the final sentence does not exceed the statutorily authorized
maximum length of incarceration for the offense of conviction, the defendant is only being
sentenced for the crime he committed. That blinks reality when, as here, the sentence
imposed so far exceeds the Guidelines range warranted for the crime of conviction itself
that the sentence would likely be substantively unreasonable unless the acquitted conduct
is punished too.”).
78 Pimental, 367 F Supp 2d at 150 (alteration in original).
79 Faust, 456 F3d at 1350-1351 (Barkett, J., concurring) (“[T]the reasonable doubt standard
is warranted when imputations of criminal conduct are at stake not only ‘because of the
possibility that [an individual] may lose his liberty upon conviction,’ but also ‘because of
the certainty that he would be stigmatized . . . .’ Even though Faust’s maximum possible
sentence was not increased by the sentencing judge’s independent findings—three separate
findings of actual, criminal conduct—they certainly do change the quantity and quality of
the stigma he faces.”) (citations omitted; alterations in original).

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28
because it would not be reasonable but for the judge-found fact that defendant committed
the conduct for which he was acquitted. Finally, for the above reasons, I have serious
concerns regarding whether the consideration of acquitted conduct can ever comply with
the Sixth Amendment.
David F. Viviano

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S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 152934
ERIC LAMONTEE BECK,
Defendant-Appellant.
C LEMENT , J. (dissenting).
The majority concludes that the trial court violated defendant’s due-process rights
during sentencing when it found by a preponderance of the evidence that defendant had
caused a death—despite defendant’s acquittal of the charge of open murder—and, relying
on this finding, imposed a sentence above the recommended guidelines range. I dissent
because I believe that the sentencing court properly considered all “circumstance[s] which
aid[ed] the sentencing court’s construction of a more complete and accurate picture
of . . . defendant’s background, history, or behavior . . . .” People v Ewing (After Remand),
435 Mich 443, 472; 458 NW2d 880 (1990) (opinion by BOYLE , J.).
In Michigan, sentencing is “a matter for the exercise of judicial discretion [which]
requires an individualized factual basis” of the defendant’s personal, criminal, and mental
history, as well as the circumstances of the crime. People v Lee, 391 Mich 618, 639; 218
NW2d 655 (1974). See also MCL 771.14 (requiring preparation of a presentence
investigation report that “inquire[s] into the antecedents, character, and circumstances of
the [defendant]” to aid the trial court in its sentencing determination). This individualized

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2
consideration guides the sentencing court in imposing a sentence within the range of
punishments set by the Legislature that is proportionate to the manner in which the
particular offense was committed and to the background of the defendant. See People v
Milbourn, 435 Mich 630, 651; 461 NW2d 1 (1990) (“[T]he Legislature, in setting a range
of allowable punishments for a single felony, intended persons whose conduct is more
harmful and who have more serious prior criminal records to receive greater punishment
than those whose criminal behavior and prior record are less threatening to society.”).
Today, the majority restricts a sentencing court’s access to information, a restriction that is
not mandated by federal or state law and that is antithetical to this state’s tradition of
providing the broadest range of information to consider at sentencing. See Lee, 391 Mich
at 639. In so doing, the majority endorses an overbroad reading of the presumption of
innocence and rejects this Court’s decision in Ewing without adequate justification.
The majority declares that the presumption of innocence prevents a trial court from
considering at sentencing conduct underlying a charge for which the defendant was
acquitted. This declaration expands the presumption of innocence beyond its function.
The presumption of innocence is rooted in constitutional due process, and it requires that
the government prove beyond a reasonable doubt every element of a criminal offense.
McMillan v Pennsylvania, 477 US 79, 85; 106 S Ct 2411; 91 L Ed 2d 67 (1986). The
presumption of innocence mandates only that a defendant cannot be convicted and
sentenced for a crime unless the elements of that crime were proved beyond a reasonable
doubt. Once the prosecutor overcomes the presumption of innocence by obtaining a
conviction, the presumption does not prevent the trial court from considering the
defendant’s relevant conduct when imposing a sentence, even if that same conduct

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3
supported an acquitted charge. The presumption does limit the trial court’s sentencing
discretion to the statutory penalties set by the Legislature for the convicted offenses,
preventing the trial court from sentencing the defendant as if he had been convicted for the
crime of which he was acquitted. Specifically, the trial court may not impose an additional
concurrent or consecutive sentence for the acquitted charge and may not leave the confines
of the continuum of sentences available for the convicted offenses. Accordingly, the trial
court does not violate the presumption of innocence by considering conduct underlying an
acquitted charge when sentencing the defendant for convicted offenses because the
defendant is not being sentenced as if he had been convicted of the acquitted crime; it is
merely a valid consideration of the manner in which the defendant committed the offenses
for which he was convicted. See Milbourn, 435 Mich at 651.
To the extent that the majority’s position implies that a sentencing court’s
consideration of conduct underlying an acquitted charge directly contradicts a jury’s
acquittal decision, there is no logical anomaly in the trial court making a factual finding
that may have been rejected by the jury at trial. An acquittal means only that the jury held
a reasonable doubt as to the defendant’s guilt of that crime, 1 not that the underlying conduct
1 As stated in Ewing (After Remand), 435 Mich at 452 (opinion by BRICKLEY, J.):
Any number of reasons not related to the defendant’s factual guilt or
innocence may be hypothesized to explain a jury’s decision to acquit. For
example, a jury may acquit a factually guilty defendant because the
prosecution was, for one reason or another, unable to present its best
evidence, as would be the case where a strong witness died or disappeared
before trial, yet sufficient evidence remained to persuade the prosecutor to
proceed to trial. To take another example, it is also true, unfortunately, that

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4
did not occur.2 At sentencing, the standard of proof is lower, requiring only that the facts
considered by the trial court are supported by a preponderance of the evidence. Because
of this lower standard of proof, the trial court can properly make a finding at sentencing
that may have been rejected by the jury at trial.
Here, the trial court was statutorily empowered to sentence defendant to any term
of years up to life imprisonment for defendant’s conviction of being a felon in possession
of a firearm (felon-in-possession). Although felon-in-possession is generally punishable
by up to five years’ imprisonment, MCL 750.224f(5), defendant’s status as a fourth-offense
habitual offender, MCL 769.12(1)(b), raised his maximum potential sentence to life
imprisonment. The guidelines minimum sentence range for defendant’s felon-in-
possession conviction was calculated to be 22 to 76 months’ imprisonment. But at
sentencing, the trial court found by a preponderance of the evidence that defendant had,
while committing felon-in-possession, caused the death of Hoshea Pruitt. On the basis of
this finding regarding the manner in which defendant committed felon-in-possession, the
trial court sentenced defendant to 240 to 400 months’ imprisonment. This sentence was
within the range of permissible sentences for felon-in-possession authorized by the
Legislature in MCL 750.224f(5) and MCL 769.12(1)(b). Contrary to the majority’s
a jury may acquit a factually guilty defendant because of confusion with
regard to the judge’s instructions.
2 I have chosen to avoid referring to such conduct as “acquitted conduct” within this
opinion because I believe that label is misleading. A jury may acquit the defendant of a
criminal charge, but—absent the use of a special verdict form—the jury does not acquit
the defendant of the underlying conduct. Accordingly—and although I acknowledge that
the United States Supreme Court has used the term “acquitted conduct” as well—I believe
that it is more precise to use the phrase “conduct underlying an acquitted charge.”

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5
position, defendant was not sentenced as if he had been convicted of the crime of murder,
but rather as if he had been convicted of felon-in-possession as a fourth-offense habitual
offender with the trial court further determining by a preponderance of the evidence that
defendant had caused a death while doing so. There is no doubt that a sentencing court
may generally consider facts relevant to how the defendant committed the offense, and
there is no basis in the law to distinguish this particular factual finding from all other
information relevant to the manner in which defendant committed felon-in-possession.
I suspect that, in this case, the majority feels like defendant is being sentenced for
an offense he was acquitted of committing because the offense for which defendant was
convicted has the same maximum penalty as the offense for which defendant was acquitted.
The fact that MCL 769.12(1)(b) increases defendant’s available maximum punishment for
felon-in-possession to life imprisonment—the same maximum punishment available for
murder—may make it seem like defendant is being sentenced for an offense for which he
was acquitted.3 But this is not an accurate observation. Consider instead a situation
wherein a defendant is acquitted of murder, but convicted of second-degree home invasion.
In this scenario, the recommended minimum sentence range for the particular defendant is
22 to 36 months’ imprisonment. The trial court is not bound to follow this advisory range,
People v Lockridge, 498 Mich 358, 391-392; 870 NW2d 502 (2015), but it is restricted by
the statutory penalty for the convicted offense of second-degree home invasion. Second-
degree home invasion may be punished by up to 15 years’ imprisonment, MCL
3 To the extent that some may find this troubling, the solution lies with the Legislature to
narrow statutory penalties for crimes or to alter the substantial increase of statutory
penalties in repeat-offender statutes like MCL 769.12.

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6
750.110a(6), although MCL 769.34(2)(b) prohibits the trial court from imposing a
minimum sentence that exceeds two-thirds of the statutory maximum sentence—as applied
here, 10 years’ imprisonment. In considering what sentence to impose in this 15-year
continuum, the trial court is not prohibited from making factual findings regarding the
manner in which defendant committed home invasion, even if those facts may have
supported the acquitted charge of murder. As long as a preponderance of the evidence
supports its conclusions, the trial court could find that the defendant killed a person in the
course of committing home invasion and rely on this information to impose the highest
sentence possible—10 to 15 years’ imprisonment, as established by MCL 750.110a(6) and
MCL 769.34(2)(b). The presumption of innocence does not prohibit this. The presumption
of innocence only prevents the trial court from sentencing the defendant as if he had been
convicted of murder, which carries a maximum penalty of life imprisonment.4 As long as
the trial court imposes a sentence within the 15-year statutory maximum of second-degree
home invasion whose minimum does not violate MCL 769.34(2)(b), it is inaccurate to say
that the defendant was sentenced as if he had committed murder.
In sum, I disagree with the majority that the presumption of innocence prevents the
trial court from considering at sentencing conduct that supported charges for which the
defendant was acquitted.5 There is a precise difference between sentencing a defendant as
4 Specifically, first-degree murder “shall be punished by imprisonment in the state prison
for life without eligibility for parole,” MCL 750.316(1), and second-degree murder “shall
be punished by imprisonment in the state prison for life, or any term of years, in the
discretion of the court trying the same,” MCL 750.317.
5 I would also have held that the consideration of such conduct does not violate a
defendant’s Sixth Amendment rights, a conclusion that is consistent with the decision of

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7
if he had been convicted of a crime for which he was acquitted and sentencing a defendant
for a convicted offense while considering conduct that supported the acquitted charge, as
this Court acknowledged nearly 30 years ago in Ewing. In concluding otherwise, the
majority inaccurately dismisses Ewing’s holding as “murky at best,” 6 concluding that
although Justice B OYLE ’s opinion provided three votes supporting the practice of
every federal circuit court. See, e.g., United States v Gobbi, 471 F3d 302, 314 (CA 1,
2006), abrogated in part on other grounds as stated in United States v Nagell, 911 F3d 23,
31 n 8 (CA 1, 2018); United States v Vaughn, 430 F3d 518, 525-527 (CA 2, 2005); United
States v Hayward, 177 F Appx 214, 215 (CA 3, 2006); United States v Ashworth, 139 F
Appx 525, 527 (CA 4, 2005); United States v Farias, 469 F3d 393, 399-400 (CA 5, 2006);
United States v White, 551 F3d 381, 383-384 (CA 6, 2008); United States v Price, 418 F3d
771, 787-788 (CA 7, 2005); United States v High Elk, 442 F3d 622, 626 (CA 8, 2006);
United States v Mercado, 474 F3d 654, 655-656 (CA 9, 2007); United States v Magallanez,
408 F3d 672, 684-685 (CA 10, 2005); United States v Duncan, 400 F3d 1297, 1304-1305
(CA 11, 2005); United States v Dorcely, 372 US App DC 170; 454 F3d 366, 371 (2006).
6 The majority also criticizes Ewing on the basis that this Court has never cited it for a
binding legal rule. While this is correct, I would note that the Court of Appeals has
repeatedly done so in its published decisions. See, e.g., People v Golba, 273 Mich App
603, 614; 729 NW2d 916 (2007) (“A trial court may consider facts concerning uncharged
offenses, pending charges, and even acquittals, provided that the defendant is afforded the
opportunity to challenge the information and, if challenged, it is substantiated by a
preponderance of the evidence.”); People v Granderson, 212 Mich App 673, 679; 538
NW2d 471 (1995) (“A majority of the justices of our Supreme Court . . . subscribe to the
view that a prior acquittal, without more, is not sufficient reason to preclude the court from
taking into account the facts underlying that acquittal at sentencing.”); People v Coulter
(After Remand), 205 Mich App 453, 456; 517 NW2d 827 (1994) (“A sentencing court is
allowed to consider the facts underlying uncharged offenses, pending charges, and
acquittals.”); People v Newcomb, 190 Mich App 424, 427; 476 NW2d 749 (1991),
overruled on other grounds People v Randolph, 466 Mich 532, 586 (2002) (“A sentencing
judge may also consider the facts underlying uncharged offenses, pending charges, and
acquittals.”). And this Court has never released an opinion or order undermining this
Court’s decision in Ewing.

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8
considering acquitted conduct at sentencing, Justice BRICKLEY’s lead opinion did not
similarly bless the practice. 7
I disagree. In Ewing, when sentencing the defendant for first-degree criminal sexual
conduct, the trial court found that the defendant “ ‘ha[d] carried on a course of conduct
involving attacks on young women over a periods [sic] of five years.’ ” Ewing (After
Remand), 435 Mich at 466 (opinion by BOYLE , J.). In so doing, the trial court relied on
information that supported pending charges, prior convictions, and uncharged offenses
against the defendant that had been presented in the presentencing information report and
during a Golochowicz8 hearing. Id. at 465-467. Justice BRICKLEY, along with three other
justices, agreed to remand the case to the trial court with the following instruction:
On remand, the sentencing judge should indicate with greater
specificity which facts he relied on in imposing sentence. If the judge
determines that he relied on allegations against the defendant which did not
result in a conviction, then the defendant must be afforded an opportunity to
challenge the accuracy of those allegations. If the judge then determines that
the accuracy of those facts has not been determined by a preponderance of
the evidence, the defendant should be resentenced. Finally, if a resentencing
is ordered, the judge will be entitled to rely on testimony containing facts
underlying an acquittal which was obtained after the original sentencing in
this case, subject to the defendant’s right to dispute the accuracy of that
testimony. [Id. at 446 (opinion by BRICKLEY, J.) (emphasis added).][9]
7 Justices L EVIN and C AVANAGH would not have reached the merits of the decision; Justice
A RCHER would have concluded that conduct underlying acquitted charges could not be
considered.
8 People v Golochowicz, 413 Mich 298; 319 NW2d 518 (1982).
9 The majority relies on the fact that Justice BRICKLEY provided the fourth vote for the
disposition of a remand to support its conclusion that Justice B RICKLEY’s approach to the
consideration of acquitted conduct at sentencing was not consistent with the approach of
Justices B OYLE , R ILEY, and GRIFFIN (the dissenting justices who would have instead

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9
The order expressly permits the trial court to rely on the defendant’s conduct underlying
charges for which, by the time of the resentencing, the defendant had been acquitted.
Moreover, Justice B RICKLEY “agree[d] with Justice B OYLE and a number of federal
decisions that the mere fact of a prior acquittal of charges whose underlying facts are
properly made known to the trial judge is not, without more, sufficient reason to preclude
the judge from taking those facts into account at sentencing.” Id. at 451.
Yet, the majority asserts that Justice B RICKLEY’s opinion is “hard[] to parse.” The
majority specifically cites Justice B RICKLEY’s statement that this Court was “not presented
with the issue whether a defendant may be punished for a crime for which no conviction
was obtained; this is clearly unconstitutional,” id. at 454, for support of its argument. But
the context of that statement demonstrates that Justice BRICKLEY was not reneging on his
earlier assertions supporting the consideration of conduct underlying acquitted charges at
sentencing. In that portion of the opinion, Justice BRICKLEY sought to establish that the
opinion did not hold “that the sentencing judge may rely on the mere fact that the defendant
was once acquitted of, and therefore had necessarily been bound over on, criminal
charges.” Id. at 453. He emphasized that the trial court in the case at hand made factual
findings based on testimony from the Golochowicz hearing and trial rather than the fact of
the charges themselves. Id. at 453-454. He then stated that the Court was “not presented
reinstated the trial court’s sentence). This difference in disposition does not undermine the
fact that Justices B OYLE , R ILEY, G RIFFIN, and BRICKLEY agreed that consideration of
conduct underlying an acquitted charge is appropriate. The divergence between the
dispositions concerned whether the defendant in that particular case had already received
sufficient opportunity to refute the information on which the trial court based its sentence,
an issue with which we are not presently faced.

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10
with the issue whether a defendant may be punished for a crime for which no conviction
was obtained”—referring to this concept of punishment based on the fact of pending or
acquitted charges only—and immediately thereafter concluded that sentencing courts
“may, in the exercise of the broad discretion conferred upon them in our sentencing
scheme, consider relevant and reliable facts about offenders when selecting appropriate
punishment within the legislatively established range for offenses whose commission has
been proven beyond a reasonable doubt.” Id. at 454.
Justice B RICKLEY endorsed the same distinction that I have made here: a defendant
cannot be punished as if the jury had found the defendant guilty of the acquitted charge,
but the trial court can consider the defendant’s conduct underlying such a charge when
sentencing the defendant for convicted offenses.10 Further, given that Justice BRICKLEY’s
opinion clearly set forth how the trial court was to consider the defendant’s conduct
10 Insofar as the majority states that I “want[] to draw [a distinction] between sentencing a
defendant more harshly based on the conclusion that the defendant committed an offense
of which he was acquitted and sentencing a defendant ‘while considering conduct that
supported the acquitted charge,’ ” I do not. I, in fact, agree with the majority that the trial
court in this case found by a preponderance of the evidence that defendant had committed
murder. My choice of phrase—“as if [defendant] . . . had caused a death” rather than “as
if defendant had committed murder”—is used to emphasize that the trial court did not
convict defendant of the criminal charge of murder. The jury found defendant guilty of
felon-in-possession, and the trial court was empowered to consider conduct related to this
conviction at sentencing when considering the continuum of available sentences that it
could impose. The trial court’s finding that defendant committed murder was not a finding
that defendant was guilty of murder beyond a reasonable doubt but instead a finding
regarding the manner in which defendant committed felon-in-possession.

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11
supporting the acquitted charges,11 it is baffling to me how the majority can conclude that
the rule of law from Ewing is “murky at best.” Justice BRICKLEY and Justice B OYLE , joined
by Justices RILEY and G RIFFIN, clearly supported the consideration of conduct underlying
acquitted charges at sentencing, establishing a rule of law that this Court is bound to
follow.12 See People v Feezel, 486 Mich 184, 212; 783 NW2d 67 (2010) (“[T]his Court
11 In the same section of the opinion, Justice BRICKLEY set forth the proper procedure for
the trial court’s consideration of conduct supporting the defendant’s acquitted charges at
sentencing:
As noted above, . . . on remand the defendant should be able to test
the accuracy of th[e] allegations [for which the defendant was acquitted]. . . .
The defendant should not, however, be able to preclude the judge from
basing his sentence on this testimony. Since the judge on remand will be
aware that a prior jury declined to find the defendant guilty beyond a
reasonable doubt in th[at] case . . . , he may hear argument from the parties
and decide how to view this testimony in light of the acquittal. Moreover,
because of the double jeopardy bar, the defendant will be unlikely to feel
pressure not to effectively challenge the accuracy of the allegations
underlying what will be, in the event of resentencing, a prior acquittal.
[Ewing (After Remand), 435 Mich at 454 (opinion by BRICKLEY, J.).]
12 Justice B RICKLEY’s opinion also provides the key to an issue raised by the parties on
appeal but left unaddressed by the majority: how to harmonize the ruling in Ewing with
this Court’s prior ruling in People v Grimmett, 388 Mich 590; 202 NW2d 278 (1972),
overruled in part on other grounds People v White, 390 Mich 245 (1973). In Grimmett, the
defendant and two others robbed a Detroit grocery store; the robbery resulted in the death
of the grocery store’s owner and the wounding of a customer. Id. at 594. The defendant
was found guilty of assault with intent to murder as to the customer. Id. at 596. At
sentencing, the trial court found that the defendant “ ‘is certainly the same person who
murdered the other grocer’ ”—referring to the murder charges filed, but not yet tried,
against the grocery store’s owner, id. at 608—and sentenced the defendant to life
imprisonment pursuant to that finding. Id. at 596. This Court held that the trial court had
“acted improperly in assuming defendant was guilty of the murder charge when he
sentenced defendant on the assault charge” and remanded the case to the trial court for
resentencing. Id. at 608. Grimmett is not inconsistent with Ewing, and this Court need not
overrule it. Grimmett forbids the assumption of guilt based on the fact that the defendant
was charged with a crime. The trial court’s factual findings must instead be supported by

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12
should respect precedent and not overrule or modify it unless there is substantial
justification for doing so.”).
Finally, I would also note that the majority has adopted a standard that may be
problematic in application: “that due process bars sentencing courts from finding by a
preponderance of the evidence that a defendant engaged in conduct of which he was
acquitted.” Left unexplained are the parameters of what constitutes acquitted conduct. Is
acquitted conduct defined only as the exact conclusion that the defendant committed the
acquitted charge? This would certainly apply to the present case, in which the trial court
expressly found that defendant had committed murder despite his having been acquitted of
the crime of murder. But does acquitted conduct extend beyond this ultimate conclusion
to all facts that supported a charge for which a defendant was acquitted? Could the trial
court here have safely found that defendant possessed a weapon and initiated a
confrontation that caused Pruitt’s death as long as it stopped short of the ultimate
conclusion that defendant murdered Pruitt? What if it is unclear why the jury acquitted the
defendant of the particular crime? For example, when a defendant is acquitted of a charge
of felon-in-possession, it is possible that the jury could not find beyond a reasonable doubt
that the defendant possessed a weapon or that he was a felon or both. If there is no
indication as to which element the jury found lacking, is the sentencing court prohibited
from considering the facts underlying either element?
a preponderance of the evidence—the mere fact of a charge, whether pending or acquitted,
does not meet that evidentiary standard.

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13
The majority’s holding may be difficult to apply, and it directly contradicts existing
precedent.13 The presumption of innocence does not prohibit the trial court from
13 Federal circuit courts have repeatedly held that the consideration of conduct underlying
an acquitted charge does not violate constitutional authority, relying on the United States
Supreme Court cases McMillan and United States v Watts, 519 US 148; 117 S Ct 633; 136
L Ed 2d 554 (1997), to support their conclusions. See, e.g., United States v Swartz, 758 F
Appx 108, 111-112 (CA 2, 2018); White, 551 F3d 381, 384-385; United States v Horne,
474 F3d 1004, 1006 (CA 7, 2007); United States v Jamerson, 674 F Appx 696, 699 (CA 9,
2017); United States v Maddox, 803 F3d 1215, 1220-1222 (CA 11, 2015); United States v
Settles, 382 US App DC 7, 10; 530 F3d 920 (2008).
In McMillan, 477 US at 85-86, the Court held that the Due Process Clause’s
requirement of proof beyond a reasonable doubt extends only to elements identified by the
state legislature as an element of the offense and not to sentencing factors. Though the
majority is correct that McMillan did not involve conduct underlying an acquitted charge,
its conclusion that the finding of sentencing factors by a preponderance of the evidence
does not violate due process is certainly relevant to the issue at hand.
Also relevant is the Court’s holding in Watts, 519 US at 157, that “a jury’s verdict
of acquittal does not prevent the sentencing court from considering conduct underlying the
acquitted charge, so long as that conduct has been proved by a preponderance of the
evidence.” The majority relies on the Court’s statements regarding Watts in United States
v Booker, 543 US 220, 240 n 4; 125 S Ct 738; 160 L Ed 2d 621 (2005), to declare Watts
unhelpful to the issue at hand. In Booker, in which the Court was presented with a Sixth
Amendment issue, the Court reasoned that Watts was not applicable to the Sixth
Amendment issue because Watts “presented a very narrow question regarding the
interaction of the Guidelines with the Double Jeopardy Clause . . . .” Id. But Booker did
not overrule Watts and did not indicate that Watts was irrelevant to a due-process challenge.
(The Watts decision not only rejected the defendants’ double-jeopardy challenge to the use
of facts underlying acquitted charges at sentencing, but also recognized the Court’s earlier
holdings “that application of the preponderance standard at sentencing generally satisfies
due process” in order to conclude that a sentencing court may consider conduct underlying
acquitted charges. Watts, 519 US at 156-157.) And, post-Booker, federal circuit courts
have cited Watts in holding that due process does not prevent the sentencing court from
considering conduct underlying acquitted charges. See, e.g., Swartz, 758 F Appx at 111-
112; Settles, 382 US App DC at 10.
Even if the majority is correct in its additional criticism of McMillan and Watts,
these cases have not been overruled, and this Court is bound to follow them (although a
plurality opinion of the United States Supreme Court has recently stated that McMillan was

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14
considering conduct underlying acquitted charges when sentencing a defendant for
convicted offenses as long as the conduct is relevant and supported by a preponderance of
the evidence. The contrary conclusion is belied by the majority’s failure to cite any
supporting precedent for its conclusion. Accordingly, I dissent from this Court’s reversal
of the judgment of the Court of Appeals. I would have affirmed the holding of the Court
of Appeals that the trial court did not err by considering conduct underlying defendant’s
acquitted charge but reversed insofar as the Court of Appeals remanded this case for a
Crosby14 hearing. Pursuant to this Court’s decision in People v Steanhouse, 500 Mich 453,
460-461; 902 NW2d 327 (2017), I would have instead remanded this case to the Court of
Appeals so that it could determine whether the trial court abused its discretion by violating
the principle of proportionality.
Elizabeth T. Clement
Stephen J. Markman
Brian K. Zahra
overruled by Alleyne v United States, 570 US 99; 133 S Ct 2151; 186 L Ed 2d 314 (2013),
see United States v Haymond, 588 US ___, ___; ___ S Ct ___; ___ L Ed 2d ___ (2019)
(Docket No. 17-1672) (opinion by Gorsuch, J.); slip op at 9-10, Alleyne affected what is
considered an element of a crime and what is considered a sentencing factor; it did not
undermine McMillan’s conclusion that sentencing factors may be proven by a
preponderance of the evidence). Further, even if McMillan and Watts could be effectively
distinguished from the case at hand without contradicting United States Supreme Court
precedent, the majority’s conclusion still directly contradicts this Court’s decision in
Ewing.
14 United States v Crosby, 397 F3d 103 (CA 2, 2005).

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