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People v. Beck

Supreme Court of Michigan

July 29, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
ERIC LAMONTEE BECK, Defendant-Appellant.

          Argued on application for leave to appeal January 23, 2019.

          Chief Justice: Bridget M. McCormack Chief Justice Pro Tem: David F. Viviano, Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

         Eric L. Beck was convicted as a fourth-offense habitual offender of being a felon in possession of a firearm (felon-in-possession) and carrying a firearm during the commission of a felony (felony-firearm), second offense, after a jury trial in the Saginaw Circuit Court. He was acquitted of open murder, carrying a firearm with unlawful intent, and two additional counts of felony-firearm attendant to those charges. The applicable guidelines minimum sentence range for the felon-in-possession conviction was 22 to 76 months in prison, but the court imposed a sentence of 240 to 400 months (20 to 3 3 Ms years), to run consecutively to the mandatory five-year term for second-offense felony-firearm. The court, James T. Borchard, J., explained that it had imposed this sentence in part on the basis of its finding by a preponderance of the evidence that defendant had committed the murder of which the jury acquitted him. Defendant appealed and challenged his convictions and sentences on multiple grounds, including that the trial court erred by increasing his sentence on the basis of conduct of which he had been acquitted. The Court of Appeals, Boonstra, P.J., and Saad and Hoekstra, JJ., issued an unpublished per curiam opinion on November 17, 2015 (Docket No. 321806), remanding for further sentencing proceedings using the procedure set forth in United States v Crosby, 397 F.3d 103 (CA 2, 2005), in light of People v Steanhouse, 313 Mich.App. 1 (2015), aff'd in part and rev'd in part 500 Mich. 453 (2017). Defendant sought leave to appeal in the Supreme Court, which, after holding the application in abeyance for Steanhouse, ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1065 (2018).

         In an opinion by Chief Justice McCormack, joined by Justices Viviano, Bernstein, and Cavanagh, the Supreme Court, in lieu of granting leave to appeal, held:

         Due process bars a sentencing court from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted and basing a sentence on that finding. Accordingly, defendant's sentence for felon-in-possession was vacated.

         1. The Fourteenth Amendment of the United States Constitution incorporates the Sixth Amendment right to a jury trial in state prosecutions. It also provides the right to due process, which includes the presumption of innocence. The United States Supreme Court has issued a number of decisions potentially relevant to whether a sentencing judge may rely on acquitted conduct when sentencing a defendant without violating due process or the right to a jury trial. In McMillan v Pennsylvania, Ml US 79 (1986), the Court did not specifically address acquitted conduct, but it held that a state statute allowing sentencing courts to find by a preponderance of the evidence a fact the jury had not been asked to decide did not violate the Due Process Clause of the Fourteenth Amendment or the jury-trial guarantee of the Sixth Amendment. In United States v Watts, 519 U.S. 148');">519 U.S. 148 (1997), which addressed a sentencing court's reliance on acquitted conduct in the context of the Double Jeopardy Clause of the Fifth Amendment rather than the Due Process Clause, the Court held, citing McMillan, that a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge as long as that conduct has been proved by a preponderance of the evidence. The United States Supreme Court's jurisprudence analyzing a defendant's due-process and Sixth Amendment rights changed significantly after Jones v United States, 526 U.S. 227 (1999), and Apprendi v United States, 530 U.S. 466 (2000), which held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. The Michigan Supreme Court addressed the use of acquitted conduct in People v Ewing (After Remand), 43 5 Mich. 443 (1990), a case that resulted in a fractured set of opinions in which it was not entirely clear what rule of law commanded a majority.

         2. McMillan could not be considered dispositive of claims that the use of acquitted conduct does not violate due process because McMillan did not involve the use of acquitted conduct; intervening caselaw based on Alleyne v United States, 570 U.S. 99 (2013), essentially overruled McMillan'?, Sixth Amendment analysis; and the intertwining nature of the Sixth Amendment right to a jury trial and the Fourteenth Amendment right to due process rendered McMillan'? due-process analysis significantly compromised. Watts was also unhelpful in resolving whether the use of acquitted conduct at sentencing violated due process because Watts addressed only a double-jeopardy challenge to the use of acquitted conduct.

         3. Reliance on acquitted conduct at sentencing violates due process based on the guarantees of fundamental fairness and the presumption of innocence, as several state courts and many judges and commentators have concluded. When a jury has made no findings regarding a defendant's conduct, as in McMillan, no constitutional impediment prevents a sentencing court punishing the defendant as if the defendant engaged in that conduct using a preponderance-of-the-evidence standard. But when a jury has specifically determined that the prosecution has not proved beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent. The use of the preponderance-of-the-evidence standard in evaluating conduct that is protected by the presumption of innocence violates due process. Because the sentencing court punished the defendant more severely on the basis of the judge's finding by a preponderance of the evidence that the defendant committed the murder of which the jury had acquitted him, it violated the defendant's due-process protections.

         Sentence for felon-in-possession vacated; case remanded to the Saginaw Circuit Court for resentencing.

         Justice Viviano, concurring, agreed with the majority that due process precludes consideration of acquitted conduct at sentencing under a preponderance-of-the-evidence standard, but he wrote separately to state his position that defendant's sentence also violated the Sixth

          Amendment because it would not have been reasonable but for the judge-found fact that defendant had committed the conduct for which he had been acquitted. Justice Viviano further stated that he had serious concerns regarding whether the consideration of acquitted conduct at sentencing could ever comply with the Sixth Amendment.

         Justice Clement, joined by Justices Markman and Zahra, dissenting, stated that a trial court does not violate the presumption of innocence by considering conduct underlying an acquitted charge when sentencing a defendant for convicted offenses because, at sentencing, the standard of proof is lower, requiring only that the facts considered by the trial court are supported by a preponderance of the evidence. She stated that defendant was not sentenced as if he had been convicted of the crime of murder, but rather as if he had been convicted of felon-in-possession as a fourth-offense habitual offender, with the trial court further determining by a preponderance of the evidence that defendant had caused a death while doing so. Justice Clement noted that the majority's standard was unsupported by precedent, was contrary to Ewing, and might be difficult to apply in practice. She would have affirmed the Court of Appeals' holding that the trial court did not err by considering conduct underlying defendant's acquitted charge but reversed the Court of Appeals' decision to remand the case to the trial court for a Crosby hearing. Instead, she would have remanded the case to the Court of Appeals pursuant to People v Steanhouse, 500 Mich. 453 (2017), to determine whether the trial court abused its discretion by violating the principle of proportionality.

         BEFORE THE ENTIRE BENCH

          OPINION

          McCormack, C.J.

         In this case, we consider whether a sentencing judge can sentence a defendant for a crime of which the defendant was acquitted.

         That the question seems odd foreshadows its answer. But to explain the question first: Once a jury acquits a defendant of a given crime, may the judge, notwithstanding that acquittal, take the same alleged crime into consideration when sentencing the defendant for another crime of which the defendant was convicted? Such a possibility presents itself when a defendant is charged with multiple crimes. The jury speaks, convicting on some charges and acquitting on others. At sentencing for the former, a judge might seek to increase the defendant's sentence (under the facts of this case, severely increase, though we consider the question in principle) because the judge believes that the defendant really committed one or more of the crimes on which the jury acquitted.

         Probably committed, that is: A judge in such circumstances might reason that although the jury acquitted on some charges, the jury acquitted because the state failed to prove guilt on those charges beyond a reasonable doubt. But the jury might have thought it was somewhat likely the defendant committed them. Or the judge, presiding over the trial, might reach that conclusion. And so during sentencing, when a judge may consider the defendant's uncharged bad acts under a lower standard-a mere preponderance of the evidence-the judge might impose a sentence reflecting both the crimes on which the jury convicted, and also those on which the jury acquitted but which the judge finds the defendant more likely than not did anyway. Is that permissible?

         We hold that the answer is no. Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.

         Because the trial court in this case relied at least in part on acquitted conduct[1] when imposing sentence for the defendant's conviction of being a felon in possession of a firearm, we reverse the Court of Appeals, vacate that sentence, and remand the case to the Saginaw Circuit Court for resentencing.[2]

         I. FACTS AND PROCEDURAL HISTORY

         The defendant was jury-convicted as a fourth-offense habitual offender of being a felon in possession of a firearm (felon-in-possession) and carrying a firearm during the commission of a felony (felony-firearm), second offense, but acquitted of open murder, carrying a firearm with unlawful intent, and two additional counts of felony-firearm attendant to those charges. The applicable guidelines range for the felon-in-possession conviction was 22 to 76 months, but the court imposed a sentence of 240 to 400 months (20 to 33Vs years), to run consecutively to the mandatory five-year term for second-offense felony-firearm. The court explained its reasons for the sentence imposed as, among other things, its finding by a preponderance of the evidence that the defendant committed the murder of which the jury acquitted him. The court stated (emphasis added):

With respect to that charge the Court does find that there are compelling reasons to go over the guidelines. The Court believes that... to sentence within the guidelines would not be proportionate to the seriousness of the defendant's conduct or the seriousness of his criminal history. And for that reason the Court is going to go over the guidelines in setting a sentence that is, in fact, proportionate to those things.
In addition to that, the maximum-when you reach the maximum on the guidelines in this case it's at 75 points, this is way over that at 125 points.
That is another reason the Court may, and will go over the guidelines in this case.
This gentleman has a prior murder conviction on his record that he pled guilty to for which he served 13 years in prison. That was in 1991. He was discharged from parole in 2007. In 2010, only three years later, he pled no contest to a firearms, possession by a felon for which he received 252 days in jail. And then this charge, offense date was June 11, 2013 where, again, he is in possession of a firearm at a murder scene.
The testimony in this case by one of the witnesses who could not identify him was that a man approached the victim with a gun. She saw a muzzle flash and the victim fell to the ground and the perpetrator ran off.
The other witness, who was not alive at the time of the trial, and was barely alive at the time of the prelim, identified this gentleman as the person who approached the victim with the gun. Gave a positive identification. Indicated she saw the gun. Then her story wavered as far as whether she saw the shooting or whether she was in her kitchen at the time of the shooting. I think the inconsistency, and where she was at the time of the shooting, as well as her not being in court, affected the jury's verdict. They could not find, beyond a reasonable doubt, that the defendant committed the homicide. But the Court certainly finds that there is a preponderance of the evidence that he did.
And I am not substituting my opinion for their's [sic]. I am just bound by a different standard in this matter. And that is the reason for the Court's finding that, in fact, this gentleman, in my opinion, did kill the victim for no reason other than jealousy. But, at the very minimum, he was the only person seen at the scene with a weapon seconds prior. Two people hearing a shot, and another lady seeing a shoot[ing] by someone she couldn't identify. And, certainly, provided the weapon. But in the Court's opinion, he didn't just provide it, he actually was the person who perpetrated the killing. And I do find by a preponderance of the evidence that that has been shown. And I do consider that in going over the guidelines in this matter.
So for the fact that the guidelines don't properly-are so far out of scoring of 125, where 75 is the highest-but, more importantly, the fact that there was a death. And the Court finds by a preponderance of the evidence that this gentleman did shoot the victim.

         The defendant appealed and challenged his convictions and sentences on multiple grounds, including that the trial court erred by increasing his sentence on the basis of conduct of which he had been acquitted. The Court of Appeals issued an unpublished opinion remanding for further sentencing proceedings (a Crosby remand)[3] under People v Steanhouse, 313 Mich.App. 1; 880 N.W.2d 297 (2015), aff d in part and rev'd in part by People v Steanhouse, 500 Mich. 453; 902 N.W.2d 327');">902 N.W.2d 327 (2017). People v Beck, unpublished per curiam opinion of the Court of Appeals, issued November 17, 2015 (Docket No. 321806). The defendant sought leave to appeal in this Court, which first held his application in abeyance for our decision in Steanhouse.[4] People v Beck, 884 N.W.2d 283 (Mich, 2016). After issuing our decision in Steanhouse, we ordered oral argument on the defendant's application and directed that it be heard at the same session as oral argument on the prosecution's application in People v Dixon-Bey, 501 Mich. 1066 (2018). People v Beck, 501 Mich. 1065, 1065-1066 (2018).[5]

         II. LEGAL BACKGROUND

         A. CONSTITUTIONAL AMENDMENTS

         The defendant argues that the trial court's reliance on conduct of which he was acquitted to increase his sentence violates his constitutional rights under the Sixth and Fourteenth Amendments of the United States Constitution, as interpreted by the United States Supreme Court.[6] The Sixth Amendment of the United States Constitution provides in part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation.

         The Fourteenth Amendment of the United States Constitution provides in relevant part:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

         B. CASE LAW INTERPRETING THOSE RIGHTS

         1. UNITED STATES SUPREME COURT

         As a general matter, the Fourteenth Amendment incorporates the Sixth Amendment right to a jury trial in state prosecutions. Duncan v Louisiana, 391 U.S. 145, 149; 88 S.Ct. 1444; 20 L.Ed.2d 491 (1968). And the Fourteenth Amendment right to due process includes "the presumption of innocence-that bedrock 'axiomatic and elementary' principle whose 'enforcement lies at the foundation of the administration of our criminal law.'" In re Winship, 397 U.S. 358');">397 U.S. 358, 363; 90 S.Ct. 1068; 25 L.Ed.2d 368 (1970), quoting Coffin v United States, 156 U.S. 432, 453; 15 S.Ct. 394; 39 L.Ed. 481 (1895).

         The United States Supreme Court has issued a number of decisions potentially relevant to the issue presented here-whether a sentencing judge may rely on acquitted conduct when sentencing a defendant without violating due process or the right to a jury trial. In the first, McMillan v Pennsylvania, 477 U.S. 79; 106 S.Ct. 2411; 91 L.Ed.2d 67 (1986), the Court did not specifically address acquitted conduct. Rather, it considered whether a Pennsylvania statute that allowed sentencing courts to find by a preponderance of the evidence that the person "visibly possessed a firearm" during the commission of the offense, resulting in a five-year mandatory minimum sentence, was constitutional. Id. at 81. That is, the statute permitted the court to find by a preponderance a fact the jury had not been asked to decide. The Court held that the statute did not violate the Due Process Clause of the Fourteenth Amendment or the jury-trial guarantee of the Sixth Amendment. Id. at 91-93. It explained that it saw no reason to "constitutionaliz[e] burdens of proof at sentencing." Id. at 92.

         Next came United States v Watts, 519 U.S. 148');">519 U.S. 148; 117 S.Ct. 633; 136 L.Ed.2d 554 (1997). Watts did address a sentencing court's reliance on acquitted conduct, but in the context of a claim that the use of such conduct violated the Double Jeopardy Clause of the Fifth Amendment. Citing McMillan, the Court held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence." Id. at 157. The Court did not address the Fourteenth Amendment right to due process.

         Around 1999, the United States Supreme Court's jurisprudence analyzing a defendant's due-process and Sixth Amendment rights underwent a sea change. In Jones v United States, 526 U.S. 227, 232; 119 S.Ct. 1215; 143 L.Ed.2d 311 (1999), and then Apprendi v United States, 530 U.S. 466; 120 S.Ct. 2348; 147 L.Ed.2d 435 (2000), the Court established the following constitutional rule:[7] "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490. The Court further noted that its rule was grounded in the "Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment" and that "[t]he Fourteenth Amendment commands the same answer in this case involving a state statute." Apprendi, 530 U.S. at 476. The "Apprendi revolution," as it has been called, has wrought significant changes in sentencing practices in state and federal courts. See generally Booker v United States, 543 U.S. 220; 125 S.Ct. 738; 160 L.Ed.2d 621 (2005) (relying on Apprendfs rule to strike down the mandatory federal sentencing guidelines and make them advisory only); Lockridge, 498 Mich. at 399 (doing the same to Michigan's mandatory sentencing guidelines).

         2. MICHIGAN SUPREME COURT

         This Court has also addressed the use of acquitted conduct, albeit in a case with a fractured set of opinions in which it is not entirely clear what rule of law commanded a majority. In People v Ewing (After Remand), 435 Mich. 443; 458 N.W.2d 880 (1990), there were three substantive opinions:[8] Justice Brickley's lead opinion, Justice Archer's opinion concurring in part and dissenting in part, and Justice BOYLE's concurring opinion (joined by Justices Riley and Griffin) that dissented in result. Justice BOYLE's opinion blessed the practice of sentencing courts relying on acquitted conduct as long as it was proven by a preponderance of the evidence. Id. at 473 (opinion by BOYLE, J.). Justice BOYLE relied primarily on McMillan and Dowling v United States, 493 U.S. 342, 349; 110 S.Ct. 668; 107 L.Ed.2d 708 (1990), to support that conclusion. Ewing (After Remand), 435 Mich. at 472-473 &n 15.

         Justice Brickley's lead opinion is harder to parse. He agreed with Justice BOYLE that "the mere fact of a prior acquittal of charges whose underlying facts are properly made known to the trial judge is not, without more, sufficient reason to preclude the judge from taking those facts into account at sentencing." Id. at 451 (opinion by BRICKLEY, J.). Yet his opinion proceeds to say that a judge's right to rely on such conduct might be limited under some circumstances not before the Court. Id. at 453-455. Among these caveats is the statement that "we are not presented with the issue whether a defendant may be punished for a crime for which no conviction was obtained; this is clearly unconstitutional." Id. at 454. Finally, Justice BRICKLEY agreed with the majority of justices who concluded a remand to the trial court was required to "test the accuracy of these allegations regarding his conduct." Id. at 446. Thus, the binding rule of law from Ewing, if any, is murky at best.[9]

         III. ANALYSIS

         The question whether the Sixth and Fourteenth Amendments permit the use of acquitted conduct to increase a defendant's sentence presents issues of constitutional interpretation, which we review de novo. Lockridge, 498 Mich. at 373. That means that we review the issues independently, with no required deference to the trial court. Millar v Constr Code Auth, 501 Mich. 233, 237; 912 N.W.2d 521 (2018).

         Federal courts that have addressed constitutional challenges to the use of acquitted conduct at sentencing have relied almost entirely on McMillan and Watts to reject both due-process and Sixth Amendment challenges. See, e.g., United States v Home, 474 F.3d 1004, 1006 (CA 7, 2007) (citing McMillan and Watts but not identifying the constitutional right at issue); United States v Dorcely, 372 U.S. App DC 170, 175-177 (rejecting both due-process and Sixth Amendment arguments, citing McMillan and Watts); United States v Faust, 456 F.3d 1342, 1347-1348 (CA 11, 2006) (finding no Sixth Amendment violation, discussing Watts); United States v Boney, 298 U.S. App DC 149, 160-161; 977 F.2d 624 (1992) (due process) (collecting cases). We see several problems with relying on those cases for due-process purposes, [10] and we address each of these concerns in greater detail below.

         A. McMillan

         There are at least three problems with relying on McMillan as dispositive of claims that the use of acquitted conduct does not violate due process. First, McMillan did not involve the use of acquitted conduct. Second, its constitutional analysis rests on very shaky footing in light of intervening caselaw. Third, even if it is only McMillan'?, Sixth Amendment analysis that has been abrogated, the intertwining nature of the Sixth Amendment right to a jury trial and the Fourteenth Amendment right to due process makes it all but impossible not to view its due-process analysis as significantly compromised.

         First problem: McMillan did not involve a trial court's reliance on acquitted conduct, and so it never addressed this unique question.[11] Thus, its general holding that it does not violate due process or the Sixth Amendment for the trial court to find facts by a preponderance of the evidence when imposing sentence is not obviously applicable.[12] Acquitted conduct is, of course, different from uncharged conduct-acquitted conduct has been formally charged and specifically adjudicated by a jury. While it is true that McMillan declined to "constitutionaliz[e] burdens of proof at sentencing," McMillan, 477 US at 92, that disinclination was expressed in an answer to a different question than the one we answer now.

         Acquitted conduct is already constitutionalized. Due process encompasses the requirement that the state prove the charges beyond a reasonable doubt, to be sure. But that's not all it guarantees.[13] See Faust, 456 F.3d at 1352 (Barkett, J., concurring specially) (concluding that the use of acquitted conduct at sentencing violates "other aspects of 'the requirement of fundamental fairness' embodied in the constitutional right to due process of law"), quoting Winship, 397 U.S. at 369 (Harlan, J., concurring). It also encompasses the presumption of innocence and the requirement of notice.

         A defendant is entitled to a presumption of innocence as to all charged conduct until proven guilty beyond a reasonable doubt, and that presumption is supposed to do meaningful constitutional work as long as it applies. At least that's what we tell the accused[14] and the jury[15] about how it works. We can think of no reason that a jury's finding the defendant not guilty of a charge undoes that guarantee. In fact, the jury's view that the state did not meet its burden of proof should cut the other way.

         Hypotheticals are helpful. Imagine a judge sending a defendant acquitted of all the charges against him to prison because the judge believed the evidence supported some punishment. Or a judge in a bench trial acquits a defendant of some charges but convicts of others and then punishes him as if he had been convicted of all the charges.

         The difference between acquitted conduct and uncharged bad acts presented at sentencing is critical and constitutional. Acquitted conduct shows up at sentencing in the company of the due-process protection of the presumption of innocence; uncharged conduct does not, says McMillan.

         Due process also requires adequate notice. A defendant sentenced for conduct the jury acquitted him of surely has a notice complaint. See, e.g., United States v Canania, 532 F.3d 764, 777 (CA 8, 2008) (Bright, J., concurring) (stating that the use of acquitted conduct at sentencing violates the due-process right to notice because "[i]t is not unreasonable for a defendant to expect that conduct underlying a charge of which he's been acquitted to play no determinative role in his sentencing"); see also Ewing, 435 Mich. at 454 (opinion by BRICKLEY, J.) (stating that before acquitted conduct may be used to enhance a sentence, a defendant "should be able to test the accuracy of those allegations" so that the judge "may hear argument from the parties and decide how to view [acquitted conduct] testimony in light of the acquittal"). Because McMillan concerned uncharged conduct and not acquitted conduct, it does not address these constitutional due-process questions. Nor could it have-uncharged and therefore unconsidered-by-a-jury conduct is apples to acquitted conduct's oranges.

         Second problem: McMillan's, continued vitality is significantly in question after Alleyne v United States, 570 U.S. 99; 133 S Ct2151; 186 L.Ed.2d 314 (2013). At minimum, its Sixth Amendment analysis has been overruled in everything but name.[16]

         Third problem: even if McMillan'?, due-process analysis remains superficially viable, the complementary analysis of the Sixth Amendment jury-trial right and the Fourteenth Amendment due-process right necessarily calls it into question as a practical matter. See Apprendi, 530 U.S. at 476 (stating that its rule is grounded in the notice and jury-trial rights of the Sixth Amendment as well as the Fourteenth Amendment); Alleyne, 570 U.S. at 104 (opinion by Thomas, J.) (stating that it is the Sixth Amendment jury-trial right "in conjunction with the Due Process Clause" that requires that each element of a crime be proved to the jury beyond a reasonable doubt). The interwoven nature of the United States Supreme Court's analysis of the Sixth Amendment and due-process rights makes it impossible to conclude that its analysis of the former has been repudiated but its analysis of the latter remains entirely viable.

         That said, while we believe McMillan rests on an extremely shaky foundation, we leave to the United States Supreme Court "the prerogative of overruling its own decisions." Rodriguez de Quijas v Shear son/American Express, Inc, 490 U.S. 477, 484; 109 S.Ct. 1917; 104 L.Ed.2d 526 (1989). Thus, it is because McMillan did not involve acquitted conduct that we conclude that it does not answer the question here.

         B. WATTS

         Watts is in many ways the most difficult to dispense with, and also the most difficult to parse. Watts directly addressed a sentencing court's use of acquitted conduct at sentencing. But though its language was not always specific about the constitutional right it examined, [17] in a later case the Court made clear that Watts addressed only a double-jeopardy challenge to the use of acquitted conduct. Five justices gave it side-eye treatment in Booker and explicitly limited it to the double-jeopardy context. Booker, 543 U.S. at 240 n 4 (observing that Watts "presented a very narrow question regarding the interaction of the Guidelines with the Double Jeopardy Clause, and did not even have the benefit of full briefing or oral argument," so it was "unsurprising that we failed to consider fully the issues presented to us in these cases").[18] As we must, we take the Court at its word. We therefore find Watts unhelpful in resolving whether the use of acquitted conduct at sentencing violates due process.[19]

         C. SO NOW WHAT?

         Because we conclude that neither McMillan nor Watts requires us to reject the defendant's argument that the use of acquitted conduct to sentence a defendant more harshly violates due process, [20] we address this question on a clean slate.[21] A few state courts have concluded that reliance on acquitted conduct at sentencing violates due process, grounding that conclusion in the guarantees of fundamental fairness and the presumption of innocence. See State v Cote, 129 NH 358, 375; 530 A.2d 775 (1987) (concluding that "the presumption of innocence is as much ensconced in our due process as the right to counsel," citing Coffin); State v Marley, 321 NC 415, 425; 364 S.E.2d 133 (1988) (also citing Coffin in support of its conclusion that "due process and fundamental fairness precluded the trial court from aggravating defendant's second degree murder sentence with the single element-premeditation and deliberation-which, in this case, distinguished first degree murder after the jury had acquitted defendant of first degree murder").

         We agree. When a jury has made no findings (as with uncharged conduct, for example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.[22] But when a jury has specifically determined that the prosecution has not proven beyond a reasonable doubt that a defendant engaged in certain conduct, the defendant continues to be presumed innocent.[23] "To allow the trial court to use at sentencing an essential element of a greater offense as an aggravating factor, when the presumption of innocence was not, at trial, overcome as to this element, is fundamentally inconsistent with the presumption of innocence itself." Marley, 321 NC at 425.

         Unlike the uncharged conduct in McMillan, conduct that is protected by the presumption of innocence may not be evaluated using the preponderance-of-the-evidence standard without violating due process. While we recognize that our holding today represents a minority position, one final consideration informs our conclusion: the volume and fervor of judges and commentators who have criticized the practice of using acquitted conduct as inconsistent with fundamental fairness and common sense. Regarding jurists, see, e.g., Faust, 456 F.3d at 1349 (Barkett, J., concurring specially) ("I strongly believe . . . that sentence enhancements based on acquitted conduct are unconstitutional under the Sixth Amendment, as well as the Due Process Clause of the Fifth Amendment"); id. at 1351-1352 & n 2; Canania, 532 F.3d at 778 (Bright, J., concurring) ("I wonder what the man on the street might say about this practice of allowing a prosecutor and judge to say that a jury verdict of 'not guilty' for practical purposes may not mean a thing"); United States v Mercado, \l\ F3d 654, 662 (CA 9, 2007) (Fletcher, J., dissenting) ("Such a sentence has little relation to the actual conviction, and is based on an accusation that failed to receive confirmation from the defendant's equals and neighbors"); United States v White, 551 F.3d 381, 392 (CA 6, 2008) (Merrirt, J., dissenting) ("[T]he use of acquitted conduct at sentencing defies the Constitution, our common law heritage, the Sentencing Reform Act, and common sense."); United States v Brown, 892 F.3d 385, 408 (CA DC, 2018) (Millert, J., concurring) ("[A]llowing courts at sentencing 'to materially increase the length of imprisonment' based on conduct for which the jury acquitted the defendant guts the role of the jury in preserving individual liberty and preventing oppression by the government.") (citation omitted); id. at 415 (Kavanaugh, J., dissenting in part) ("[T]here are good reasons to be concerned about the use of acquitted conduct at sentencing, both as a matter of appearance and as a matter of fairness . . . .").

         Regarding commentators, for just a sampling, see Johnson, The Puzzling Persistence of Acquitted Conduct in Federal Sentencing, and What Can be Done About It, 49 Suffolk Univ L Rev 1, 25 (2016) (quoting other sources for the proposition that "[t]he use of acquitted conduct has been characterized as, among other things, 'Kafka-esque, repugnant, uniquely malevolent, and pernicious[, ]' 'mak[ing] no sense as a matter of law or logic,' and. . . a 'perver[sion] of our system of justice,' as well as 'bizarre' and 'reminiscent of Alice in Wonderland' "); Ngov, Judicial Nullification of Juries: The Use of Acquitted Conduct at Sentencing, 76 Tenn L Rev 235, 261 (2009) ("[T]he jury is essentially ignored when it disagrees with the prosecution. This outcome is nonsensical and in contravention of the thrust of recent Supreme Court jurisprudence."); Beutler, A Look at the Use of Acquitted Conduct at Sentencing, 88 J Crim L & Criminology 809, 809 (1998) (observing that "[t]he use of acquitted conduct in sentencing raises due process and double jeopardy concerns that deserved far more careful analysis than they received" in Watts and noting "the fundamental differences between uncharged and acquitted conduct which trigger these constitutional concerns").

         This ends here. Unlike many of those judges and commentators, we do not believe existing United States Supreme Court jurisprudence prevents us from holding that reliance on acquitted conduct at sentencing is barred by the Fourteenth Amendment. We hold that it is.

         Because the sentencing court punished the defendant more severely on the basis of the judge's finding by a preponderance of the evidence that the defendant committed the murder of which the jury had acquitted him,[24] it violated the defendant's due-process protections.

         IV. CONCLUSION

         We hold that due process bars sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted. Because the judge did exactly that in this case, we vacate the defendant's sentence for felon-in-possession and remand that case to the Saginaw Circuit Court for resentencing consistent with this opinion.

          Bridget M. McCormack David F. Viviano Richard H. Bernstein Megan K. Cavanagh

          David F. Viviano, J. (concurring).

         In every criminal trial, jurors are instructed, "What you decide about any fact in this case is final."[1] But if a judge may increase a defendant's sentence beyond what the jury verdict alone authorizes-here, based on the judge's finding that the defendant committed a crime of which the jury just acquitted him-a more accurate instruction would read: "What you decide about any fact in this case is interesting, but the court is always free to disregard it." Though I concur fully in the majority opinion, including its holding that due process precludes consideration of acquitted conduct at sentencing under a preponderance- of-the-evidence standard, I write separately to explain (1) why I believe that, because defendant's sentence would not survive reasonableness review without the judge-found fact of homicide, his sentence also violates the Sixth Amendment, and (2) why I believe more generally that the consideration of acquitted conduct at sentencing raises serious concerns under the Sixth Amendment.

         The Sixth Amendment enshrines the right to trial by jury: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ."[2] As the majority recognizes, the United States Supreme Court has not addressed whether the use of acquitted conduct at sentencing is permissible under the Sixth Amendment. United States v Watts[3] was a Fifth Amendment decision. However, although the Supreme Court has not directly answered this question, I believe that its Sixth Amendment jurisprudence provides helpful guidance.

         I. THE JURY MUST AUTHORIZE ALL FACTS NECESSARY TO PREVENT A SENTENCE FROM BEING SUBSTANTIVELY UNREASONABLE

         In Blakely v Washington, [4] the Supreme Court stated, "When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment,' . . . and the judge exceeds his proper authority." In other words, as Justice Antonin Scalia explained in his dissent in Oregon v Ice, "[W]e have hitherto considered 'the central sphere of [the Supreme Court's] concern' to be facts necessary to the increase of the defendant's sentence beyond what the jury verdict alone justifies. 'If the jury's verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.' "[5] This makes sense. "A judge's authority to issue a sentence derives from, and is limited by, the jury's factual findings of criminal conduct."[6]

         Even under United States v Booker's[7] advisory guidelines, there can be instances where the jury's verdict alone does not authorize the punishment because the punishment would not be reasonable except for the judge's finding of fact. In his concurrence in Rita v United States, Justice Scalia offered two hypothetical situations that would pose such Sixth Amendment concerns:

First, consider two brothers with similar backgrounds and criminal histories who are convicted by a jury of respectively robbing two banks of an equal amount of money. Next assume that the district judge finds that one brother, fueled by racial animus, had targeted the first bank because it was owned and operated by minorities, whereas the other brother had selected the second bank simply because its location enabled a quick getaway. Further assume that the district judge imposes the statutory maximum upon both brothers, basing those sentences primarily upon his perception that bank robbery should be punished much more severely than the Guidelines base level advises, but explicitly noting that the racially biased decisionmaking of the first brother further justified his sentence. Now imagine that the appellate court reverses as excessive only the sentence of the nonracist brother. Given the dual holdings of the appellate court, the racist has a valid Sixth Amendment claim that his sentence was reasonable (and hence lawful) only because of the judicial finding of his motive in selecting his victim.
Second, consider the common case in which the district court imposes a sentence within an advisory Guidelines range that has been substantially enhanced by certain judge-found facts. For example, the base offense level for robbery under the Guidelines is 20, which, if the defendant has a criminal history of I, corresponds to an advisory range of 33-41 months. If, however, a judge finds that a firearm was discharged, that a victim incurred serious bodily injury, and that more than $5 million was stolen, then the base level jumps by 18, producing an advisory range of 235-293 months. When a judge finds all of those facts to be true and then imposes a within-Guidelines sentence of 293 months, those judge-found facts, or some combination of them, are not merely facts that the judge finds relevant in exercising his discretion; they are the legally essential predicate for his imposition of the 293-month sentence. His failure to find them would render the 293-month sentence unlawful. That is evident because, were the district judge explicitly to find none of those facts true and nevertheless to impose a 293-month sentence (simply because he thinks robbery merits seven times the sentence that the Guidelines provide) the sentence would surely be reversed as unreasonably excessive.[8]

         These hypotheticals illustrate that "for every given crime there is some maximum sentence that will be upheld as reasonable based only on the facts found by the jury or admitted by the defendant. Every sentence higher than that is legally authorized only by some judge-found fact, in violation of the Sixth Amendment."[9] This is because, as stated above, "The Sixth Amendment requires that '[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.' "[10] As Justice Scalia explained in his dissenting statement in Joseph Jones v United States:

The Sixth Amendment, together with the Fifth Amendment's Due Process Clause, "requires that each element of a crime" be either admitted by the defendant, or "proved to the jury beyond a reasonable doubt." Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, and "must be found by a jury, not a judge." We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable-thereby exposing the defendant to the longer ...

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