When the U.S. Supreme Court recessed in late June, it did so not merely with tectonic social justice decisions, but by denying writs of certiorari in numerous federal criminal cases (see e.g. United States v. McLinton, 23 F. 4th 732 [7th Cir. 2022] cert. den. __ U.S. __ [2023]) involving petitions filed on behalf of incarcerated defendants whose sentences were enhanced by federal district judges applying the “acquitted conduct rule” (Sentencing Guideline 1B1.3).
To be sure, the Federal Sentencing Commission (FSC) embedded the consideration of jury-acquitted conduct in its definition of “relevant conduct.” Applying Talmudic logic, the FSC reasoned that the variance between a jury applying a beyond a reasonable doubt legal standard, and a judge applying a less demanding legal standard of “preponderance of the evidence” (see e.g. United States v. Watts, 519 U.S. 148, 157, 117 S. Ct. 633 [1997, per curiam); United States v. Vaughn, 430 F. 3d 518 [2nd Cir. 2005]).
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