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The Sixth Amendment to the U.S. Constitution guarantees that all persons prosecuted for a crime have the right to be judged by an impartial jury. Yet the prevailing rule in all the federal circuits allows a sentencing court to increase a defendant’s sentence based on one or more crimes of which he was acquitted at trial. While still a minority voice, there is a growing chorus—from the bench and bar—calling into question the constitutionality and fundamental fairness of this rule, which has been called a “repugnant” and “uniquely malevolent” aspect of the current federal sentencing regime.1

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