Whether the Fifth and Sixth Amendments prohibit the use of acquitted conduct to enhance a defendant's sentence?

QUESTION PRESENTED FOR REVIEW Dearieus Duheart went to trial on three charges: (1) possession with intent to distribute marijuana; (2) possession of a firearm in furtherance of a drug trafficking crime; and (3) possession of a firearm after having been convicted of a crime punishable by imprisonment for a term exceeding one year. While the jury found Duheart guilty only of possession with intent to distribute marijuana, the district court imposed a twolevel dangerous weapon enhancement which resulted in a longer sentence than otherwise applicable under the Guidelines. The Fifth Circuit held the issue is foreclosed by United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 186 L.Ed.2d 554 (1997). Since Watts, though, four current sitting justices of this court have questioned whether using acquitted conduct to enhance a defendant’s sentence “disregards the Sixth Amendment.” Jones v. United States, 574 U.S. 948, 135 S.Ct. 8, 190 L.Ed.2d 278 (J. Scalia, with J. Thomas and J. Ginsburg dissenting from denial of certiorari); United States v. Bell, 808 F.3d 926 (U.S.D.C. 2015)(then Judge Kavanaugh); United States v. Sabillion-Umana, 772 F.3d 1328 (10th Cir. 2014) (then Judge Gorsuch). Thus, the question before this court is: Whether the Fifth and Sixth Amendments prohibit the use of acquitted conduct to enhance a defendant’s sentence?