Whether the Fifth and Sixth Amendments preclude a district court from increasing a defendant's sentence based on conduct, uncharged and unrelated to the offense of conviction, found by the court under a preponderance of the evidence at sentencing?

QUESTION PRESENTED The question presented by this case is whether the Fifth and Sixth Amendments preclude a district court from increasing a defendant’s sentence based on conduct, uncharged and unrelated to the offense of conviction, found by the court under a preponderance of the evidence at sentencing?! | In this case, Mr. Sikes pled guilty (per a plea agreement) in the district court to several theft-related charges. His calculated Sentencing Guidelines score included an advisory prison range between 51 to 63 months (or 4 years, 3 months to 5 years, 3 months (so, roughly, 4-5 years’ imprisonment)). At sentencing, the government argued, above and beyond the fraud for which he accepted , responsibility, Mr. Sikes had also engaged in inappropriate sexual conduct with underage boys — conduct that Mr. Sikes had never before been formally charged. The government argued that the sentencing court was allowed to consider these other criminal allegations (which were unrelated to the offenses of conviction) in determining a sentence because the law allowed it to consider any information relating to the background and character of Mr. Sikes, including “uncharged conduct.” Consequently (and over the objection of Mr. Sikes), the district court 1 In another matter pending before this Court which has been distributed for conference on November 20, 2020, the question presented is: “Whether the Fifth and Sixth Amendments prohibit a federal court from increasing a criminal defendant’s sentence for conduct underlying a count on which the jury acquitted.” Michael Ludwikowski v. United States, No. 19-1293, Petition for Cert. (May 4, 2020), page i. i found by a preponderance of evidence that in addition to the fraud Mr. Sikes had | pled guilty, he also had committed the uncharged sexual conduct and relied on that | finding to impose a 10-year (or 120-month) prison sentence, an upward variance from the otherwise recommended guidelines range of 4 to 5 years. This case, then, asks whether the Fifth and Sixth Amendments preclude a sentencing court from basing or grounding a criminal defendant’s sentence on conduct for which the defendant had never been charged — that is, whether a district court violates a defendant’s Fifth and Sixth Amendment rights by | considering “uncharged conduct” that it finds by a preponderance of evidence, but | that the defendant had never been formally charged with or had previously been convicted? See generally, e.g., Asaro v. United States, 140 S. Ct. 1104 (2020) | | | (No. 19-107); Martinez v. United States, 140 S. Ct. 1128 (2020) (No. 19-5346); | Baxter v. United States, No. 19-6647 (April 20, 2020) 2 By way of comparison, the question framed in the matter of Vincent Asaro v. United States, No. 19-107: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct underlying a charge for which the defendant was acquitted by a jury.” Petition for Cert., No. 19-107 (July 22, 2019), at page i. The Court denied certiorari on February 24, 2020. Though Mr. Asaro was ostensibly challenging the use of “acquitted conduct” at the time of sentencing, here, Mr. Sikes is challenging the broader use of “uncharged conduct” at the time of sentencing. See generally United States v. Sabillon-Umana, 772 F.3d 1328, 1331 (10" Cir. 2014) (discussing a “district court’s power to find facts at sentencing”). i