Whether the district court violated Khalil Abu Rayyan's Fifth and Sixth Amendment rights by imposing an upward variance of almost three times the top of his guidelines range based solely upon uncharged conduct not relevant to the offenses of conviction and not proved beyond a reasonable doubt

QUESTIONS PRESENTED FOR REVIEW (1) Several United States Courts of Appeals have suggested that the use of defendants’ uncharged, unproven conduct in deciding their sentences may violate their Fifth and Sixth Amendment rights. This Court has ruled that the use of uncharged conduct is unconstitutional in determining defendants’ minimum and maximum sentences, but not in imposing upward variances and determining final sentences. Alleyne v. United States, 570 U.S. ---, 183 S. Ct. 2151 (2013) (min.); Apprendi v. New Jersey, 530 U.S. 466 (2000) (max.). Did the district court violate Khalil Abu Rayyan’s Fifth and Sixth Amendment rights by imposing an upward variance of almost three times the top of his guidelines range based solely upon uncharged conduct not relevant to the offenses of conviction and not proved beyond a reasonable doubt? (2) United States Sentencing Guidelines § 3E1.1(b) allows for a reduction of one offense level, on the government’s motion, for a defendant who has “timely notif[ied] authorities of his intention to enter a plea of guilty, thereby permitting the government to avoid preparing for trial and permitting the government and the court to allocate their resources efficiently.” In 2013, the Sentencing Commission amended § 3E1.1(b), limiting the government’s discretion to withhold such motions only to cases where the defendant has failed to preserve government trial resources. Did the district court err in failing to compel the government to file a § 3E1.1(b) motion for Khalil Abu Rayyan, where the government’s proffered reasons for refusal related only to its own requests for a competency evaluation as well as its premature motion about a sentencing issue, affirmatively filed after having received notice of Rayyan’s intent to plead guilty? ii