In October 2014, the Supreme Court denied review in Jones v. United States, a case on “a judge’s power to impose a longer sentence by relying on conduct that the jury rejected as evidence of guilt,” as Lyle Denniston explained for SCOTUSblog. Lyle noted that this practice had long been the subject of debate, and that Justice Antonin Scalia was not happy with the court’s decision to turn down the case. “This has gone on long enough,” Scalia wrote in a dissent from the denial, which was joined by Justices Clarence Thomas and Ruth Bader Ginsburg.
Twelve years later, the court still hasn’t taken up the issue, although in 2023, four justices – Sonia Sotomayor, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – acknowledged its significance as they turned down several related petitions for review, signaling that they preferred to wait for the U.S. Sentencing Commission to address it. The next year, the commission did so, updating the federal sentencing guidelines in an attempt to limit judges’ authority to include acquitted conduct in their sentencing decisions. But the 2024 amendment did not end the practice of – or debate over – acquitted-conduct sentencing. This explains why the justices are again being asked to address it in a petition for review expected to be conferenced this week.
The instant petition centers on Keith Pharms, who in 2024 was convicted “of five criminal charges arising from his involvement in a shooting at a federal officer in the aftermath of a car theft and his subsequent conduct while in custody,” as the U.S. Court of the Appeals for the 11th Circuit explained when considering his case. One of those charges was “using a firearm during a crime of violence.” The jury convicted Pharms on this count, but it did not find that he had fired the weapon, which would have increased his minimum sentence.
Despite the jury’s decision, the district court judge treated Pharms as if he had been the shooter during sentencing, explaining that this conclusion was supported by a “preponderance of the evidence,” which is an evidence standard employed by judges during sentencing and which is a lower threshold than “beyond a reasonable doubt,” the standard that guides juries. Pharms was sentenced to 192 months in prison, reduced by his time served.
Pharms appealed to the 11th Circuit, contending that his sentence violated the Fifth and Sixth Amendments, which guarantee a right to due process and a right to a jury trial, respectively. Specifically, he asserted that acquitted-conduct sentencing deprived him of these rights by punishing him for conduct that was not proven beyond a reasonable doubt to a jury. The federal court of appeals rejected these arguments.
In his petition for review, Pharms emphasizes that justices “have repeatedly questioned the constitutionality of enhancing a criminal defendant’s sentence based on acquitted conduct” and urges the court to take up his case and “squarely address[]” whether acquitted-conduct sentencing violates the Fifth or Sixth Amendments. He also highlights a split between federal courts of appeals, which “uniformly have upheld” this sentencing practice, and state supreme courts, many of which “have held the practice unconstitutional.” “Indeed, if petitioner had been prosecuted in Georgia state court rather than federal court there, his sentence could not have been enhanced for conduct of which the jury had acquitted him,” according to the petition.
In the federal government’s response to Pharms’ petition, U.S. Solicitor General D. John Sauer asserts that the Supreme Court “has long upheld a district court’s authority to consider such conduct” proven “by a preponderance of the evidence” during the sentencing phase of a trial and asks the justices to deny review in Pharms’ case, as they have “recently and repeatedly” done with other petitions “raising similar questions.” If there is lingering confusion or concern surrounding acquitted conduct sentencing, he continues, it would be best left to Congress or the U.S. Sentencing Commission to address.
Additionally, Sauer, as Pharms did, points to the agreement between federal courts of appeals on this issue, but he presents it as evidence that the case is not worth the court’s time. “[U]niformity on the question presented is a reason to deny review, not to grant it,” Sauer writes.
Pharms v. United States is scheduled to be considered by the justices for the first time at their private conference on Thursday.
Disclosure: SCOTUSblog columnist John Elwood represents Keith Pharms. Elwood had no involvement with this Closer Look.
