Consideration of Acquitted Conduct at Sentencing - (People v Beck)

 If you have spent any time reading (or re-reading) the new decision in People v Beck, __ Mich __ (Docket No.  152934, 7/29/19), you may have found some interesting questions and implications raised by the decision. Here are some key points to consider:

1. THE HOLDING OF BECK: The Due Process Clause of the 14th Amendment precludes consideration of acquitted conduct at sentencing. The presumption of innocence and fundamental fairness preclude consideration of acquitted conduct at sentencing. Slip op at 18-19. The Court also mentions, in passing, the due process right to adequate notice. Slip op at 14.

Beck involved a jury’s acquittal of open murder and conviction of felon in possession as a fourth habitual offender (as well two convictions of felony firearm and one conviction of carrying a weapon with unlawful intent as a fourth habitual offender). The judge departed from the sentencing guidelines range of 22 to 76 months and imposed a minimum sentence of 240 months for the felon in possession conviction. The trial judge relied in significant part on the conclusion that defendant was guilty of the murder. The Michigan Supreme Court concluded in an opinion written by Chief Justice Bridget McCormack (joined by Justices Viviano, Bernstein and Cavanagh) that “[o]nce acquitted of a given crime, it violates due process to sentence the defendant as if he committed that very same crime.” Slip op at 2.

2. BECK NOT LIMITED TO DEPARTURES: The Beck opinion does not limit its holding to acquitted conduct that is used to justify a departure sentence. To the contrary, when attorney Philip Ellison argued the case before the Michigan Supreme Court, he appeared careful in choosing his words so as not to limit the argument to departure sentences. In the same vein, the Beck decision does not contain any language limiting its holding to departure sentences.

3. ACQUITTED CONDUCT USED TO SUPPORT A WITHIN-GUIDELINES SENTENCE: If the trial court considers acquitted conduct when imposing a within-guidelines sentence, the defendant may have a valid objection on appeal. As a general rule, the Court of Appeals must affirm a sentence that falls within the sentencing guidelines range absent a misscoring of the guidelines or consideration of inaccurate information. MCL 769.34(10). Yet an important  caveat exists: Defendants may raise a constitutional challenge to a within-guidelines sentence. People v Conley, 270 Mich App 301; 715 NW2d 377 (2006); People v Powell, 278 Mich App 381; 750 NW2d 607 (2018) The Beck decision, as noted above, was based on the Due Process Clause of the 14th Amendment.

4. UNCHARGED CONDUCT MAY BE CONSIDERED AT SENTENCING: Beck clearly states that uncharged conduct may be considered at sentencing under the preponderance of the evidence standard. “When a jury has made no findings (as with uncharged conduct, for  example), no constitutional impediment prevents a sentencing court from punishing the defendant as if he engaged in that conduct using a preponderance-of-the-evidence standard.” Slip op at 18.

5. PENDING CHARGES – POSSIBLY AN OPEN QUESTION? The sentence quoted in paragraph 4 above (“When a jury has made no findings . . .”) would appear to suggest that pending charges may be considered at sentencing using a preponderance of the evidence  standard. But this interpretation may be ripe for challenge in light of the presumption of innocence. Although the presumption of innocence has been viewed as a trial right, Bell v Wolfish, 441 US 520, 533 (1979), the United States Supreme Court’s more recent decision in Nelson v Colorado, 137 S Ct 1249 (2017), may suggest broader application of the right. In Nelson, the Court applied the presumption in a post-trial, post-appeal setting. The Court disagreed with a Colorado statute that required defendants, whose convictions had been vacated on appeal (one was later acquitted and the other was not retried) to prove their innocence in order to obtain a refund of fines, costs and restitution. The Supreme Court relied in part on the presumption of innocence: “But once those convictions were erased, the presumption of innocence was restored.” Nelson, 137 S Ct at 1255. At least one commentator has suggested that Nelson may extend the presumption of innocence beyond the trial process. “It is unclear how broad the Court will interpret the presumption of innocence, but like Frye and Lafler in the plea bargaining context, Nelson is an indication that the Court believes the presumption of innocence provides protection outside of the trial stage.” Zina Makar, Displacing Due Process, 67 DePaul Law Review 425, 471 (2018).

Pending charges are not proof of criminal wrongdoing. The majority in Beck agrees that its previous decision in People v Grimmett, 385 Mich 590; 202 NW2d 278 (2012), overruled in part on other grounds People v White, 390 Mich 245 (1973), is not controlling, apparently because Grimmett merely stands for the proposition that a court may not assume guilt based on the mere fact of a charge. Slip op at 18 n 21, agreeing with Justice Clement’s dissent that Grimmett is distinguishable because it “forbids the assumption of guilt based on the fact that the defendant was charged with a crime.” Slip op at 11 n. 12 (dissent of Clement, J.; emphasis in original).

The question post-Beck is now unavoidable: Does the presumption of innocence protect a defendant from the consideration of pending charges at sentencing? Or does the preponderance of evidence standard apply to pending charges because no jury has adjudicated these claims?

6. CONSIDERATION OF ACQUITTED CONDUCT FROM A DIFFERENT CASE: Beck involved acquittal by jury in the very same case that led to sentencing on lesser offenses. There is, however, no statement or implication that Beck is limited to acquittals from the same case. A strong argument can be made that Beck precludes the trial court’s consideration of previous acquittals when making a sentencing decision.

SCORING THE SENTENCING GUIDELINES – ANY LIMITS? Beck was not a case about the scoring of the sentencing guidelines. As a practical matter, acquitted conduct cannot be scored as a prior conviction or a subsequent/concurrent conviction under Prior Record Variables 1, 2, 5 or 7 because each variable requires a “conviction” and the definition of “conviction” does not include acquitted conduct. See MCL 777.50-57. It is conceivable that a prosecutor might  seek (and a judge might agree) to assess additional points under the offense variables based on acquitted conduct. Pre-Beck, the offense variables could be scored for the actual conduct of the defendant, even if it was inconsistent with the conviction offense. People v Harverson, 291 Mich App 171; 804 NW2d 757 (2010). Post-Beck, this rule may or may not hold true. For example,the instruction to Offense Variable 6 (Intent to Kill or Injure) allows a judge to score this variable for conduct going beyond the jury’s verdict when the judge “has information that was not presented to the jury.” MCL 777.36(2)(a). This instruction may well fall in light of a straightforward application/extension of Beck. Whether other offense variables may be scored based on acquitted conduct is a question that ultimately will be determined by the appellate courts. In the meantime, defense counsel would be wise to object to the scoring of any offense variable that relies on acquitted conduct, and should assert the Due Process Clause of the 14th Amendment as well as the Due Process Clause of Michigan Constitution of 1963, art 1, § 17.1 (For good measure, one might include a Sixth Amendment claim should the law develop positively in this direction.)

7. PROSECUTORIAL DISCRETION IN CHARGING: One concern raised by Justice Markman during oral argument was the prosecutor’s discretion not to bring a weaker charge (for fear of acquittal) in cases where multiple charges might otherwise be appropriate. Can a prosecutor save uncharged conduct for consideration at sentencing? The two hypotheticals  below discuss this potential problem.

HYPOTHETICAL ONE: Defendant is charged with second-degree murder but not first-degree murder because the prosecutor believes the latter charge has some flaws or the evidence is weak. If the jury convicts of second-degree murder, the trial judge could, under Beck, consider the cold- blooded, premeditated nature of the crime at sentencing. This was true before Beck and after  Beck because the uncharged nature of the first-degree murder charge would not preclude consideration of premeditation and deliberation at sentencing (except as limited by statute under OV 6). From a tactical standpoint, however, a defendant would appear to benefit in at least two ways from the absence of a weak charge of first-degree murder: (1) there would be no possible conviction of the higher charge, and (2) there would be no opportunity for jury compromise.

HYPOTHETICAL TWO:  Defendant is charged with armed robbery, but the prosecutor elects not to add a weaker charge of CSC first-degree for conduct that occurs immediately before the robbery. If the judge hears evidence of the CSC during trial, the judge may consider the conduct at sentencing under Beck and the preponderance standard. This is certainly possible, and it may encourage savvy prosecutors to refrain from charging weaker offenses. But is this necessarily a bad thing? It may not bode well for sentencing, but there would be a corresponding benefit at trial as described above.

New decisions give us a delightful opportunity to reimagine the law. Time will tell how far Beck
extends and how it may influence future sentencing decisions.

by Anne Yantus

Anne Yantus is a professor of practice and director of externships at University of Detroit Mercy School of Law.  Her previous employment with the State Appellate Defender Office allowed her to specialize in Michigan felony sentencing, and she continues to serve as an expert and guest speaker in that field.  Her upcoming schedule includes talks for the Institute of Continuing Legal Education (October 2, 2019), CDAM (November 9, 2015), and the Wayne County Criminal Advocacy Program (November 15, 2019).


1.  Beck did not rely on the Due Process Clause of the Michigan Constitution (which could establish an independent basis for relief that would insulate the matter from federal review) only because Mr. Beck did not independently challenge the trial court’s use of acquitted conduct on this basis. Beck, slip op at 6 n 6.

All material is the property of Anne Yantus, copyright © August 26. 2019.  Reprinted with permission.