use of “relevant conduct” under the mandatory guidelines to change the sentencing range, “when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant.”6By contrast, in a series of cases leading up to Booker, the Court had held that juries must find beyond a reasonable doubt the facts that determine the sentencing range—not judges by a preponderance of the evidence. Those decisions contradict the Court’s reliance in Watts on the proposition that “an acquittal in a criminal case does not preclude the Government from relitigating an issue when it is presented in a subsequent action governed by a lower standard of proof.”7 The difference between finding a fact to be proven for purposes of changing the sentencing range and considering information for purposes of selecting a sentence within a defined range also means that the Court was wrong in Watts to rely on 18 U.S.C. § 3661 as permitting the enhancement of a sentence based on a judicial finding that the defendant committed conduct of which he had been acquitted.8 Prohibiting a court from increasing the sentencing range based on acquitted conduct is not a bar to the presentation or judicial consideration of “information concerning the background, character and conduct” of the defendant—only to using such information in the manner of a fact found by a jury.Once it is established that facts determining the sentencing range are for the jury and proof beyond a reasonable doubt, it seems obvious that ordinary principles of double jeopardy would preclude a judge from increasing a mandatory sentencing range based on acquitted conduct. The judge would, in effect, be placing the defendant in jeopardy of punishment at sentencing for the same offense after a jury found him not guilty. Moreover, it should also be obvious that 18 U.S.C. § 3661 does not prevent the Sentencing Commission from adopting a guideline barrin

likely curb the practice significantly. At the very least, the change will send an important signal about what is and isn’t appropriate to consider at sentencing.A bill currently pending in Congress would go even further. The “Prohibiting Punishment of Acquitted Conduct Act of 2023,” co-sponsored by Senators Chuck Grassley (Republican of Iowa) and Dick Durbin (Democrat of Illinois) would prohibit acquitted conduct sentencing entirely. The House Judiciary Committee unanimously approved the bill on November 2, 2023.10 An identical bill previously stalled in the Senate due to legislative gridlock, but only after passing the House with overwhelming bipartisan approval.11 To the extent that punishment is supposed to reflect the will of the people, the House vote suggests that acquitted conduct sentencing does exactly the opposite.The Sentencing Commission should adopt the pending amendment to the Guidelines and end its endorsement of a practice that offends basic notions of fairness.1 See 18 U.S.C. § 3661; U.S.S.G. § 6A1.3(a).2 United States v. Watts, 519 U.S. 148, 157 (1997).3 United States Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, Dec. 26, 2023, https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20231221_rf-proposed.pdf4 United States Sentencing Commission, 2023-2024 Amendment Cycle, Proposed Amendment/Public Comment 88 FR 89142, p. 43, https://www.ussc.gov/sites/default/files/pdf/amendment-process/public-comment/202402/88FR89142_public-comment.pdf#page=435Id., pp. 49, 465.6 ABA Standards for the Prosecution Function Std. 3-4.3(a).7 Justice Manual § 9-27.220, https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution#9-27.2208Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).9United States v. Booker, 543 U.S. 220, 259 (2005).10 Congress.gov, H.R.5430 - Prohibiting Punishment of Acquitted Conduct Act of 2023: 118th Congress (2023-2024), https://www.congress.gov/bill/118th-congress/house-bill/5430/text?s=4&r