Acquitted Conduct Sentencing Ends: Supreme Court Rules 6–3 That Judges Cannot Punish Conduct a Jury Rejected

WASHINGTON — Federal judges may not increase a defendant's sentence on the basis of conduct a jury has acquitted, the Supreme Court held on Thursday, ending a practice it had permitted for nearly thirty years and declined to revisit as recently as 2023. The 6–3 decision in United States v. Marlowe holds that the Fifth Amendment's guarantee of due process and the Sixth Amendment's guarantee of a jury trial together forbid a court from treating as proved, for the purpose of punishment, the very facts a jury found the government had failed to prove.

"A verdict of not guilty must mean something at sentencing, or it means nothing at all," the majority wrote.

The case

Marlowe was charged with possessing a firearm as a felon and with using the firearm in a drug-trafficking crime. The jury convicted him on the possession count and acquitted him on the trafficking count. At sentencing, the district court found by a preponderance of the evidence that he had in fact used the gun in connection with drug distribution, applied a Guidelines enhancement on that basis and imposed a sentence more than twice the range that would otherwise have applied. The court of appeals affirmed, citing Watts. The Supreme Court granted review in a case the government itself had asked it to take, acknowledging the conflict between Watts and the Court's later jury-right decisions.

What the Court held

1. The jury's verdict is binding at sentencing. The majority held that the Sixth Amendment's jury right, as elaborated in Apprendi v. New Jersey (2000), Booker (2005) and Alleyne (2013), protects not only the facts that fix the statutory range but the integrity of the verdict itself. A sentence that is lengthened because the judge believes the jury got it wrong, the Court said, punishes the defendant for the acquitted crime under another name.
2. Watts is confined. The 1997 per curiam decision, which had held that a jury's acquittal does not prevent a sentencing court from considering the conduct, was decided without briefing or argument and before the modern jury-right cases. The Court limited it to conduct that was never charged and said that, to the extent it permitted reliance on acquitted conduct, it "does not survive."
3. The rule covers variances as well as the Guidelines. The government had argued that even if the Guidelines could not count acquitted conduct, 18 U.S.C. § 3661 — which provides that no limitation shall be placed on the information a court may consider — allowed a judge to rely on it in choosing a sentence. The Court held that § 3661 cannot authorize what the Constitution forbids, and that the prohibition applies however the acquitted conduct is used to increase the sentence.
4. Uncharged and dismissed conduct are unaffected. The decision does not reach conduct the government never put before a jury, or counts dismissed as part of a plea, and it does not disturb the preponderance standard for other sentencing facts.

The dissent

The three dissenting justices would have adhered to Watts. An acquittal, they wrote, establishes only that the government did not prove the charge beyond a reasonable doubt, not that the conduct did not occur, and sentencing has always rested on a judge's assessment of the whole person under a lower standard. The dissent warned that the decision would encourage prosecutors to charge fewer counts and plead more cases, would generate litigation over which facts "belong" to an acquitted count, and would unsettle sentences imposed in reliance on a rule that every court of appeals had followed for decades.

A verdict of not guilty must mean something at sentencing, or it means nothing at all.

From the majority opinion

How the issue got here

The Court had declined to take up acquitted-conduct sentencing in McClinton v. United States in 2023, with several justices writing separately to say the question was serious and that the Sentencing Commission should address it first. The Commission did, in part: an amendment to Guideline §1B1.3 that took effect on November 1, 2024 excluded acquitted conduct from "relevant conduct," except where it also establishes an element of the offense of conviction. But the amendment governed only the Guidelines calculation. Courts remained free to consider acquitted conduct under § 3553(a) when choosing a sentence within or above the range, the Commission had not made the amendment retroactive, and the constitutional question remained open. Several state supreme courts, Michigan's among them, had already barred the practice under their own constitutions.

What the ruling means

• Pending cases. Defendants whose sentences rest on acquitted conduct and whose direct appeals are open may seek resentencing; courts of appeals are expected to remand affected cases rather than decide them.
• Final convictions. The Court said nothing about collateral review. Under Teague v. Lane and Edwards v. Vannoy (2021), new procedural rules do not apply retroactively to final convictions, so most prisoners sentenced on acquitted conduct will have to look to the Commission, which could vote to make the 2024 amendment retroactive, or to compassionate-release motions.
• Charging and plea practice. Prosecutors lose a fallback that softened the cost of an acquittal on the most serious count; defense lawyers expect more careful charging, and more leverage in plea negotiations where a count is weak.
• Sentencing hearings. Judges will have to identify which facts the jury necessarily rejected, a question that will be litigated case by case where counts overlap.

The Counsel will report the Sentencing Commission's response and the first remands. Defendants and families seeking to know whether a sentence rested on acquitted conduct should consult the sentencing transcript and a federal defense attorney.

This report is for general information only and is not legal advice. Readers should consult a licensed attorney about their own circumstances. Docket numbers and citations are to the official reporters unless otherwise stated.