The Second Circuit, like other federal circuits, has long held that the Due Process Clause permits a sentencing court to take into account conduct for which the defendant was acquitted (so-called “acquitted conduct”). See, e.g., United States v. Vaughn, 430 F.3d 518, 521 (2d Cir. 2005). But the Michigan Supreme Court just held otherwise: “Once acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.” People v. Beck, No. 152934 (Mich. July 29, 2019).
The Court’s holding was based on the United States Constitution (rather than the Michigan Constitution). Thus, the state of Michigan could reasonably decide to petition for certiorari in the Supreme Court of the United States.
Given this possibility, and the chance that the Supreme Court of the United States will grant review and ultimately agree with Beck, you may wish to pursue and preserve constitutional challenges—based on both the Fifth and Sixth Amendments—to any use of acquitted conduct at sentencing.
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