Whether a sentencing court must find a fact conceded by the government to be untrue by more than a preponderance of the evidence

After remand from this Court, Petitioner Efrain Lora was resentence d to thirty years in confinement because he supposedly direct ed a murder. But the Government conceded that there was in fact no evidence that Mr. Lora directed it , which was carried out by four other individuals sentenced to five, ten, and fifteen years sentences . Th is case concerns whether a fact conceded by the government can be found by a sentencing judge by a preponderance of the evidence. The Constitution requires that facts used in sentencing be found by specific actors under specific standards of proof depending on the circumstances to satisfy due process . See, e.g. , Apprendi v. New Jersey , 530 U.S. 466, 489 (2000); United States v. Watts, 519 U.S. 148, 156 (1997). And there are serious due process concerns in situations like Mr. Lora’s . See, e.g., McClinton v. United States, 143 S. Ct. 2400 (2023) (mem) (Sotomayor, J., respecting the denial of certiorari) (discussing acquitted conduct sentencing). Indeed, t he circuits are in conflict over the proper response to facts conceded by the government at sentencing. While the Fifth and Eighth C ircuits require sentencing courts to accept those concessions under certain circumstances, the Second Circuit below joined the Eleventh Circuit to hold that courts have no such obligation. The sentencing court below rejected a conceded fact by finding a contrary proposition by a mere preponderance of the evidence. The question presented is: Whether a sentencing court must find a fact conceded by the government to be untrue by more than a preponderance of the evidence.