This article appeared in Business Crimes Bulletin, an ALM/Law Journal Newsletters publication that features the news and analysis you need to stay on top of the fast-changing, multi-faceted world of financial and white-collar crime.

It would be a surprise to many, but it has been common knowledge to criminal practitioners for years, that a criminal defendant's sentence for a crime which they have been convicted can be increased based on consideration of conduct that the jury acquitted. As some have observed, this outcome can make a partial acquittal in federal court into a pyrrhic victory as the defendant's sentence is impacted by the same behavior that the jury concluded was not proved beyond a reasonable doubt. And not just impacted on the margin — a defendant's sentence can be greatly increased.

This is true in both white-collar cases and in cases involving drug dealing or crimes of violence. Take the case of Dayonta McClinton, who was convicted by a jury of being one of a group that robbed an Indianapolis CVS pharmacy in 2015. See, McClinton v. United States, petition for cert. pending, No. 21-1557 (filed June 10, 2022). The jury acquitted McClinton of even more serious conduct — the shooting of one of the other robbers in the back of the head at point-blank range. Nonetheless, the sentencing court found, using a preponderance of the evidence standard, that McClinton did commit the homicide. As a result, the sentencing court more than tripled McClinton's Sentencing Guidelines Range, from 57-71 months, based on the robbery, to a sentence of 228 months, holding him responsible for the homicide.