MSC Reverses Sentence Based on Acquitted Conduct
Eric 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 331⁄3 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 The Court of Appeals, BOONSTRA, P.J., and SAAD and HOEKSTRA, JJ., issued an unpublished per curiam opinion on November 17, 2015 (Docket No. 321806), remanding for further sentencing proceedings using the procedure set forth in United States v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 F3d 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. InMcMillan v Pennsylvania, 477 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 US 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 US 227 (1999), and Apprendi v United States, 530 US 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), 435 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 US 99 (2013), essentially overruledMcMillan’s 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’s 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
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 US 99 (2013), essentially overruledMcMillan’s 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’s 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.
Nathan Collison (formerly Chief of Appeals at the Saginaw County Prosecutor's Office) handled the appeal for the state. The defendant is represented by Michael Skinner from Lake Orion, Michigan.
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