Amicus curiae brief of the National Association of Criminal Defense Lawyers, the National Association of Federal Defenders and the American Civil Liberties Union of the Nation’s Capital in support of appellants, urging reversal.

Argument: The holding in Watts does not govern the Sixth Amendment issues presented here. A defendant’s sentencing guideline calculation should be based solely on the crime of conviction.

Motion for Leave to File Brief of Amicus Curiae and Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: The decision below allows the government to criminalize speech that is objectively non-threatening. The decision below contravenes this Court’s case law and First Amendment principles. The existing state of the law paired with the realities of our criminal justice system risks suppressing speech.

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.