The “Congress Park Crew” was a loose-knit gang that ran a crack cocaine market in the Congress Park neighborhood of Washington, D.C. for thirteen years. The Government indicted Desmond Thurston, Antwuan Ball, and Joseph Jones, along with twelve others, for distributing, and conspiracy to distribute, small amounts of crack cocaine. Eleven of the defendants pled guilty while the twelfth defendant was convicted by a jury.


In November 2007, Thurston, Ball and Jones were also convicted by a jury of distributing small quantities of crack cocaine but acquitted of being involved in a conspiracy to distribute those same drugs. Based on Jones’s and Thurston’s criminal histories, they faced maximum sentences of 30 and 20 years respectively. Ball faced a mandatory minimum of five and a maximum of 20 years.


Vigorous Pre-sentence motions seriously interrupted the sentencing protocols of the three men between May 2008 and July 2010. The U.S. Sentencing Guidelines recommended a sentence of 324 to 405 months for Jones, 262 to 327 months for Thurston, and 292 to 365 months for Ball. Expressing concern about the severity of punishments for crack cocaine, the judge sentenced to Jones to 180 months, Thurston to 194 months, and Ball to 225 months.


The judge nonetheless believed that all three men were part of a conspiracy to distribute crack cocaine, the jury’s acquittal on these charges notwithstanding. Clearly, “but for” the trial judge’s reliance on a charge for which the three defendants were acquitted, their sentences would have been substantially lower—somewhere between 27 to 71 months.


In 2013, the U.S. Supreme Court in United States v. Alleyne held that both the Fifth and Sixth Amendments require that “each element of a crime” be either admitted by a defendant “or proved to the jury beyond a reasonable doubt.”


Alleyne had been charged with using or carry a firearm in relation to a crime of violence which carries a mandatory minimum of five years and seven years if the weapon is actually brandished during the crime. The jury convicted him of using or carrying a firearm but not of brandishing it. A Presentence Investigation Report nonetheless recommended that a 7-year sentence be imposed for brandishing the weapon. The divided Supreme Court (5-4) held that because a mandatory minimum sentence increases the penalty for a crime, any fact that increases the mandatory minimum (such as brandishing) is an “element” of the offense that must be submitted to the jury.


Alleyne is consistent with a 2000 decision by the Supreme Court, Apprendi v. New Jersey, which held that any “facts that increase the prescribed range of penalties to which a criminal defendant is exposed” are elements of the crime that must be proved to a jury beyond a reasonable doubt.


The Alleyne court made it clear that its ruling did not include facts that influence “judicial discretion” but rather applied to situations where the sentencing range is supported by the jury’s verdict. In other words, only the jury, not the judge, could have found that Alleyne brandished the weapon used in relation to the charged crime of violence. The judge’s discretion does not reach into this realm of factual decision-making which belongs exclusively to a jury.


Therefore, at first glance it would seem that, under both Apprendi and Alleyne, the sentences imposed on Jones, Thurston and Ball were substantially unreasonable because they were based on the judge’s belief that the three were involved in a conspiracy for which the jury had acquitted them.


First glances, however, can be misleading.


Last year the D.C. Circuit Court of Appeals rejected this argument in the Jones/Thurston/Ball cases, relying on its precedents that a sentence based on acquitted conduct is, in fact, reasonable when the acquitted conduct is proven to the judge by a preponderance of the evidence and the ultimate sentence imposed does not exceed the statutory maximum for the charged crime.


This argument is of no minor significance.


The three defendants would have faced sentences ranging from 27 to 71 months had it not been for the judge’s reliance upon conduct for which they had been acquitted by the jury. The judge relied primarily on the testimony of Congress Park co-conspirators to find that Jones, Thurston and Ball were part of the gang’s conspiracy to sell drugs in that neighborhood. Put simply, the judge decided the defendants had engaged in the conspiracy based on a preponderance of the evidence after the jury determined the conspiracy wasn’t proven beyond a beyond a reasonable doubt.


The three defendants put this issue before the Supreme Court following the D.C. Circuit denial: can the trial judge attribute criminal conduct to a defendant by a preponderance of the evidence after a jury has said the conduct was not proven beyond a reasonable doubt? Many legal scholars and experts believed the high court would use the case as an opportunity to decide when, if ever, acquitted conduct can be used in the sentencing process.


This past October the Court denied the defendants certiorari application and passed on the opportunity to address this important sentencing issue. Justices Scalia, Thomas and Ginsburg dissented. The dissent believed that “it unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element [such brandishing or conspiracy] that must be either admitted by the defendant or found by the jury. It may not be found by a judge.”


The Court’s decision not to clarify this issue drew immediate criticism in the legal community. University of Illinois College of Law professor, Margaret Etienne, a sentencing expert, told the latest edition of the National Law Journal that: “It is hard to understand why the court ruled as it did. It goes against everything the Supreme Court has said for the past 15 years.”


Cato Institute senior fellow IIya Shapiro was more blunt in his assessment of the court’s action. He charged that the court’s decision was “another opportunity lost by the Court, another responsibility shirked.” As the editor-in-chief of the Cato Supreme Court Review told the Journal: “The issue has been raised in numerous lower court decisions, and in a 2007 Supreme Court case, several justices said it should be taken up if the right case came along. As recently as Oct. 1, the U.S. Court of Appeals for the First Circuit mentioned the Jones case in a ruling criticizing the ‘questionable practice’ of basing sentences on uncharged or unproven offenses.”


Attorney Stephen Leckar, who represented the three defendants in their certiorari application, lamented that the petition fell “one vote short” of being granted. Leckar noted that because conservative justice Scalia and Thomas dissented, it “ought to be a fire bell in the night.”


It is unfathomable to us, and should be unacceptable to the courts, that a sentencing judge can consider evidence presented by the prosecution at a sentencing hearing and find that a defendant is guilty of the conduct after a jury has acquitted him for that very same conduct. There is no way to square what the First Circuit called this “questionable practice” with the Fifth and Sixth Amendments of our constitution. The practice, in effect, renders a jury verdict impotent.