Brief of Amici Curiae Americans For Prosperity Foundation, Dream Corps Justice, National Association of 
Criminal Defense Lawyers, Niskanen Center, Right On Crime, The R Street Institute, and The Sentencing Project in Support of Petitioner.

Argument: A sentencing judge should not be allowed to functionally overrule a jury's tal acquitof a criminal defendant and punish him for that same acquitted conduct. Yet all too many criminal defendants who were acquitted of more serious criminal charges but convicted on one or more lower charges face judges doing just that. How is this constitutionally dubious sentencing practice possible? Put simply, many lower courts have mistakenly overread this Court's per curiam decision in Watts to permit sentencing judges to do what Apprendi and its progeny later prohibited; namely, find facts that increase the punishment beyond that authorized by the jury's findings of guilt. Acquitted-conduct sentencing flips the presumption of innocence on its head by allowing judges to functionally overrule unanimous jury acquittals based on judge-found facts using the far lower preponderance standard, gutting the Sixth Amendment's jury-trial right. At a minimum, the Sixth Amendment jury-trial right, coupled with the due process requirement that all facts necessary to legally authorize punishment must be proven beyond a reasonable doubt, should bar judges from using the same alleged conduct a jury acquitted a defendant of to justify dramatically increasing a defendant's Guidelines range and sentence.

Coalition letter to the House Judiciary Committee regarding legislation to address the judicial discretion that allows for factoring into sentencing conduct acquitted by a jury, as proposed in Prohibiting Punishment of Acquitted Conduct Act of 2021 (H.R. 1621).

 Brief of Amici Curiae Americans for Prosperity Foundation, the National Association Of Criminal Defense Lawyers, Dream Corps Justice, and the R Street Institute in Support of Petitioner.

Argument: Acquitted-conduct sentencing cannot be squared with the Sixth Amendment. The Sixth Amendment requires juries find all facts legally necessary to justify a defendant’s sentence. Reliance on Judge-found facts to triple Mr. Osby’s sentence violates the Sixth Amendment jury trial right. Use of acquitted conduct at sentencing guts the presumption of innocence. The reasonable doubt standard protects against wrongful punishment. Judicial factfinding using the lower preponderance standard to overrule a jury acquittal violates due process. Use of acquitted conduct at sentencing undermines the legitimacy of our criminal justice system. 

Coalition letter to the Senate Judiciary Committee regarding a renewed proposal to ban judges from determining sentences influenced by conduct acquitted by a jury, as addressed in the Prohibiting Punishment of Acquitted Conduct Act of 2021 (S. 601).

Coalition letter to the Senate Judiciary Committee regarding the Prohibiting Punishment of Acquitted Conduct Act of 2019 (S. 2566).

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in support of Appellant.

Argument: The Supreme Court’s Apprendi jurisprudence, not its decision in Watts, governs Sixth Amendment questions about the permissibility of judicial fact-finding in criminal cases. Application of the controlling Sixth amendment analysis from Apprendi is not foreclosed by precedent. This case presents an excellent vehicle for revisiting this Court’s acquitted conduct jurisprudence because it highlights the important policy interests that are implicated when a sentence effectively nullifies a jury’s verdict.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on Petition for Writ of Certiorari).

Argument: This case presents an ideal vehicle for the Court to address under the Sixth Amendment the use of acquitted conduct from the same trial to increase a defendant's sentencing guidelines range. In order to preserve the essential role of the jury, a defendant's sentencing guidelines calculation should not include conduct of which he was acquitted at the same trial. Increasing a defendant's sentencing guidelines range by use of acquitted conduct violates the Sixth Amendment. Circuit precedent extending Watts to allow the use of conduct of which the defendant was acquitted at the same trial to calculate a defendant's range should be abrogated.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: Neither Watts nor procedural obstacles hinder the Court’s consideration of petitioner’s Sixth Amendment claim. Petitioner’s case casts in stark relief the grave constitutional concerns that can arise from a judge’s use of acquitted conduct at sentencing. This case presents no procedural obstacles. The Fifth Circuit and other courts of appeals have rejected prior Sixth Amendment challenges in deference to Watts rather than on the merits. The lower courts’ deference to Watts conflicts with this Court’s Sixth Amendment jurisprudence. Several jurists (including Justices of this Court), practitioners, and scholars have written disapprovingly of the overextension of Watts. The broad language of 18 U.S.C. § 3661 and the Sentencing Guidelines notwithstanding, the Sixth Amendment forbids extending a sentence based on acquitted conduct.