Prohibit Acquitted Conduct From Enhancing Criminal Penalties, Petition Asks Supreme Court
This case law update was written by James P. Garay Heelan, an attorney at the law firm of Shaw Bransford & Roth, where he has practiced federal personnel and employment law since 2012. Mr. Heelan represents federal personnel across the Executive Branch, including career senior executives, law enforcement officers, foreign service officers, intelligence officers, and agencies in matters of federal personnel and employment law.
A convicted criminal with support from politically conservative organizations has asked the U.S. Supreme Court to “put an end” to the judicial practice of enhancing criminal penalties based on jury-acquitted conduct.
On October 12, 2015, Dayonta McClinton and a group of young men robbed an Indianapolis pharmacy. Fearing that police were coming, the group hurriedly left the crime scene with only $68 and a handful of pharmaceuticals. After the group parked their vehicle in a residential neighborhood, McClinton’s “best friend” and one of the group’s leaders announced that because they had obtained so little during the robbery, he would not share the stolen drugs with the others. When the defiant group member exited the vehicle and began walking away, one of the other robbers shot and killed him.
Soon after the murder, several of the robbers were apprehended and charged. Months later, several of them agreed to plead guilty to the armed robberies in exchange for their testimony in the murder prosecution. Federal prosecutors then relied upon that bargained-for testimony to charge McClinton with his friend’s murder, in addition to charges for robbing the CVS with a firearm and robbing his friend of his criminal proceeds.
At trial, the defense argued it was actually one of the cooperating witnesses (the self-described “mastermind” of the group’s robbery) motivated by romantic jealousy who killed McClinton’s friend. In the end, the jury found McClinton guilty of robbing the CVS and brandishing a firearm during the robbery. But, the jury acquitted him of robbing and murdering his friend.
Despite the jury’s acquittal decision, the sentencing judge concluded it was appropriate to consider the killing to calculate McClinton’s sentence because “in determining relevant conduct, the jury finding was beyond a reasonable doubt, but the government’s burden in a sentencing hearing, is by a preponderance of the evidence,” a lower burden of proof. Based upon the judge’s own finding that McClinton killed his friend, the judge more than tripled McClinton’s sentence from a range of 57-71 months to 228 months.
McClinton appealed the conviction to the U.S. Court of Appeals for the Seventh Circuit, which affirmed the sentence. The appeals court based its decision on Watts v. United States, a decision the Supreme Court issued in 1997 addressing the interaction of sentencing guidelines with the Double Jeopardy Clause of the Constitution. The Seventh Circuit determined only the Supreme Court could change the outcome of McClinton’s case.
On petition for a writ of certiorari, McClinton’s attorneys argued the Seventh Circuit and other courts had misinterpreted and misapplied Watts to permit the kind of sentencing enhancement that occurred in McClinton’s case. As support for their argument, they highlighted opinions from then-Justices Scalia and Ginsburg, and then-Judges Gorsuch and Kavanaugh casting serious doubt on the constitutionality of the sentencing practice.
After the United States initial waived its right to respond to McClinton’s petition, the Supreme Court requested the government to respond. Organizations from across the political spectrum—including the Americans for Prosperity Foundation, the Cato Institute, and the National Association of Federal Defenders—have filed briefs in support of McClinton’s petition. In October 2022, the United States filed its response.
The justices will next decide whether to accept McClinton’s petition. For the Court to take up the petition, four justices must vote to accept the petition for full briefing and a decision. FEDagent will report on further developments.
You can read the full petition to the Supreme Court in McClinton v. United States here: https://www.supremecourt.gov/DocketPDF/21/21-1557/230055/20220714103728274_Brief.pdf.
For over thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.