The Uncertain Future of Acquitted Conduct Sentencing



Daytona McClinton was seventeen years old when he robbed a CVS pharmacy with five of his friends, while brandishing a firearm. After fleeing the scene, a fight ensued and one of the other robbers was shot and killed. For this crime, McClinton was charged as an adult, and convicted of robbery and brandishing a firearm, but acquitted of the murder of his friend. McClinton should have received a sentence of five to six years under the U. S. sentencing guidelines. But he was sentenced to nineteen years in prison. His sentence was more than tripled due to the alleged murder, a murder that McClinton was unanimously acquitted of by a jury of his peers. This was allowed through a practice called Acquitted Conduct Sentencing.

Under § 1B1.3 of the US Sentencing Guidelines, a judge must consider relevant conduct in determining a sentence, which can include conduct and charges a defendant was acquitted of. This allows a judge to effectively disagree with a jury’s acquittal, conclude that a defendant actually committed a crime, and increase the defendant’s sentence exponentially.

In 1997, the Supreme Court first addressed the issue of acquitted conduct sentencing. United States v. Watts held that a judge’s consideration of acquitted conduct did not violate the Double Jeopardy clause as long as such evidence was proven by a preponderance of the evidence. The Court argued that such conduct was relevant under the sentencing guidelines and since the defendant would still be sentenced within the very broad range for the convicted crime, the defendant was still just being sentenced for that crime. However, this framing of the issue fails to account for the broadness of sentencing ranges and the difference that considering acquitted conduct can make. For Daytona McClinton, although he was sentenced within the statutory range for armed robbery, his sentence more than tripled when the judge considered the murder charge. For Robert Mercado his sentence went from three years to twenty based on acquitted conduct and for Grey Willaims, his drug charges should have resulted in an approximately ten years sentence, but based on a acquitted murder charge, he was sentenced in life in prison.

While Watts did not consider the constitutionality of acquitted conduct sentencing in relation to due process rights or the right to a jury trial, since this was the only Supreme Court decision on the issue, lower courts have almost unanimously allowed the practice to continue. Even after Apprendi v. New Jersey, which made the sentencing guidelines advisory not mandatory, judges are still required to calculate the guideline range and thus are forced to consider acquitted conduct.

After Watts and Apprendi, the Supreme Court did not directly address the issue for many years, but multiple justices noted in dissents or while on lower courts a growing disdain for this practice. Justice Scalia argued that Acquitted Conduct Sentencing appeared to be unlawful since without the judge’s consideration of such conduct, the sentences imposed would be unreasonable. Justice Kavanaugh, while sitting on the D.C. circuit, wrote that acquitted conduct sentencing is a “dubious infringement of the rights to due process and to a jury trial.”

Most recently, the Supreme Court rejected an opportunity to decide the issue once and for all, but some justices did indicate a willingness to hear the issue. Daytona McClinton petitioned the court for review of his case. Although the court rejected his appeal, Justice Sotomayor wrote an impassioned dissent noting the inherent unfairness of acquitted conduct sentencing. But Justice Sotomayer also noted, as did three other justices in a separate statement, that the United States Sentencing Commission had announced that they were currently considering an amendment that would prevent judges from considering acquitted conduct. Thus, the Court decided to deny cert and wait until after the Sentencing Commission had decided to hear a case on the issue.

However, a few months later, the Sentencing Commission decided to move forward with other guideline amendments without addressing acquitted conduct sentencing. The Commission noted that they will take more time and reconsider the issue this year, but this does not create a certainty that any changes will occur. The Commission’s proposals also only place minor restrictions on the practice.

Additionally, even if the Sentencing Commission passed an amendment banning the consideration of acquitted conduct sentencing, there would still be legal barriers to effectuating the change. First, after the commission’s decision, Congress would still have an opportunity to reject or modify any proposed amendment for ninety days during a review period. Congress could also pass, at any time, a law codifying the use of acquitted conduct sentencing in sentencing procedures. Secondly, even if the Commission enacted an amendment and Congress allowed it to proceed, there would be tension with existing law in 18 U.S.C. § 3661 which bars any restriction on what the court can consider of the background and conduct of a defendant. Lastly, most cases involving acquitted conduct occur in state courts where the sentencing guidelines do not govern, so any amendment would not affect the practice in state courts. Thus, the Supreme Court missed the best and most effective opportunity to end consideration of acquitted conduct at sentencing.

However, McClinton’s case brought more public attention to the practice of acquitted conduct sentencing and helped to spark a renewed public conversation about it. After the Supreme Court’s decision, multiple pieces were published about this practice, with many authors voicing critical opinions and advocating for change. The Congressional Research Service published a legal sidebar explaining the practice and including considerations for congress. Multiple legal firms wrote articles addressing the topic, and a law review article has even been published. While these publications alone will not change the use of acquitted conduct at sentencing, they do demonstrate a shift in public focus and increased awareness of the practice. While change may not come soon enough to help McClinton, it was well be that his case sparked the downfall of acquitted conduct sentencing.


Suggested Citation: Trinity Kipp, The Uncertain Future of Acquitted Conduct Sentencing, Cornell J.L. & Pub. Pol’y, The Issue Spotter, (March 12, 2024),


Trinity Kipp is a second-year law student at Cornell Law School. She graduated from Thomas Edison State University with a degree in English and Communications. In addition to her involvement with Cornell’s Journal of Law and Public Policy, Trinity serves as the Executive Vice President of Cornell’s Federalist Society.

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