This article was originally published by on June 25, 2021. View the original post here

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the use of acquitted conduct in sentencing decisions, when a sentencing court must consider a defendant’s juvenile status as a mitigating factor, and compassionate release under the First Step Act.

According to the federal Sentencing Guidelines, a judge may adjust the recommended range of an offense based on a defendant’s “relevant conduct.” While the jury considers whether conduct is proven beyond a reasonable doubt, relevant conduct for sentencing purposes need only be proven to the judge by a preponderance of the evidence and can include acquitted conduct. In Osby v. United States, Erick Osby was indicted on seven charges; the jury convicted him of two and acquitted him of the other five. But because the judge considered his acquitted charges as relevant conduct, his sentence was the same as it could have been had he been convicted by the jury of all seven charges. Osby argues that adjusting a sentence based on acquitted conduct violates his rights under the Fifth and Sixth Amendments, which guarantee due process under the law and the right to a jury trial. While the Supreme Court has declined to address similar questions on this topic in the past, some of the justices have expressed their discontent with the practice of using acquitted conduct in sentencing decisions. Osby asks the justices for their review to decide whether the practice is unconstitutional.

Next, in Sanders v. Radtke the justices are asked to consider the impact of juvenile status on sentencing decisions. The petitioner, Rico Sanders, was convicted of multiple rape and assault charges at the age of 15 and sentenced to 140 years in prison with the possibility of parole at age 51. Sanders maintains that the Eighth Amendment and prior precedent required the sentencing court to consider his youth as a mitigating factor. He argues that the principle requiring sentencing courts to consider youth as a mitigating factor applies to life sentences with the possibility of parole in the same way it applies to life sentences without any possibility of parole. The petition further alleges that Sanders’ youth was used as an “aggravating factor” by the sentencing court, and he seeks the court’s review to clarify the circumstances under which a defendant’s youth must be considered as a mitigating factor.

Finally, Bryant v. United States presents a question regarding the compassionate-release provision of the federal criminal code, as amended by the First Step Act of 2018. The compassionate-release provision allows a district court to grant a sentence reduction and order immediate release upon a finding that a federal prisoner’s circumstances are “extraordinary and compelling” and that the sentence reduction is “consistent with applicable policy statements issued by the Sentencing Commission.” In 2007, the Sentencing Commission promulgated a policy statement listing “extraordinary and compelling” reasons for compassionate release and encouraging the Bureau of Prisons to file motions for compassionate release whenever prisoners were found to meet the criteria. However, in 2018, Congress passed the First Step Act, which amended the compassionate-release provision to allow federal prisoners to file motions for relief as well, rather than depending on the Bureau of Prisons to move for release.

In 2019, Thomas Bryant filed a motion for compassionate release in district court. The government opposed his motion and argued that the reasons given in Bryant’s motion did not satisfy the criteria in the 2007 policy statement. Further, the government argued that the 2007 policy statement was an “applicable” policy statement under the compassionate-release provision and that the district court was thus bound by it. The district court denied Bryant’s motion based on the reasons given by the government, and the U.S. Court of Appeals for the 11th Circuit affirmed. Bryant argues that the decision created a circuit split, in direct conflict with eight other circuits, over whether district courts are bound by the 2007 policy statement when deciding defendant-filed motions. He seeks review to clarify what constitutes an “applicable” policy statement for defendant-filed motions under the First Step Act.

These and other petitions of the week are below:

Osby v. United States
Issue: Whether basing a criminal defendant’s sentence on charges of which the jury acquitted him violates the Fifth or Sixth Amendments.

Palade v. Board of Trustees University of Arkansas System
Issue: Whether the lower courts erred in holding that Petitioners lacked standing to seek declaratory relief concerning the retroactive application of newly revised policies concerning the grounds for dismissal and academic discipline to faculty who are on the tenure-track and faculty who have already earned tenure under prior Board of Trustees policies.

Sanders v. Radtke
Issue: Whether Eighth Amendment precedent clearly establishes that a sentencing court must consider a defendant’s juvenile status as a mitigating factor before imposing a life sentence with a remote possibility of parole.

Bryant v. United States
Issue: Whether Section 1B1.13 of the United States Sentencing Guidelines is an “applicable” policy statement that binds a district court in considering a defendant-filed motion for compassionate release under 18 U.S.C. 3582(c)(1)(A), as amended by the First Step Act of 2018.

Berrier v. Delaware River Joint Toll Bridge Commission
Issue: Whether compacting States, simply by creating an interstate compact, relinquish all sovereign authority over that compact entity unless expressly reserved.

Citation: Mitchell Jagodinski, Sentencing questions raising constitutional concerns, SCOTUSblog (Jun. 25, 2021, 5:14 PM),


Mitchell Jagodinski


Mitchell Jagodinksi handles petitions pending before the Supreme Court and the Morning Read column. Mitchell worked as a 2020 summer associate at Goldstein & Russell, P.C. From 2014 to 2019, he interned at Schwab Legal Group, LLC and worked in marketing and brand management with 2K Games, Mayflower Optoelectronics and ACTransit. He graduated from the University of Wisconsin-Oshkosh with a B.A. in psychology and a B.B.A in economics with an emphasis in legal studies for business. Mitchell is also an articles editor on the Penn State Law Review.


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