Whether due process permits a sentencing court to consider conduct underlying an acquitted charge

QUESTION PRESENTED Every regional federal circuit court has addressed the constitutionality of considering conduct underlying an acquitted charge at sentencing, and each one has held that a sentencing court may consider such conduct without offending a defendant’s constitutional rights. This Court has held that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence,” and that “application of the preponderance standard at sentencing generally satisfies due process.” Contrary to this holding, the Michigan Supreme Court here held that this Court has not decided that consideration of acquitted conduct at sentencing is consistent with due process, that it was thus writing on a “clean slate,” and that due process does “bar sentencing courts from finding by a preponderance of the evidence that a defendant engaged in conduct of which he was acquitted” and considering that conduct at sentencing for the offense of conviction. The question presented is: Whether, when imposing a sentence within the statutory range for the offense of conviction, due process permits a sentencing court to consider conduct underlying an acquitted charge, so long as that conduct has been proved by a preponderance of the evidence. ii RELATED CASES People v. Beck, 13-039031-FC, Saginaw Circuit Court. Judgment entered May 1, 2014. People v. Beck, No. 321806, Michigan Court of Appeals. Judgment entered November 17, 2015. People v. Beck, No. 152934, Michigan Supreme Court. Judgment entered July 29, 2019.