United States v. Osby

UPDATE: In October 2021, the Supreme Court denied our petition for certiorari. The MacArthur Justice Center continues to fight against the unconstitutional practice of sentencing defendants based on acquitted conduct.

Erick Allen Osby was indicted on seven charges, convicted of two, and acquitted of five. But his sentence was exactly the same as it would have been had he been convicted by the jury of all seven charges—and three times as high as it would have been had the judge considered only the two charges of which the jury convicted Mr. Osby.

Tell any lay person that Mr. Osby is serving time for charges of which a jury acquitted him and they’d be aghast. Federal judges around the country—including three justices of the current Supreme Court—have expressed similar dismay. And rightly so. Sentencing based on acquitted conduct is at odds with this Court’s Fifth and Sixth Amendment case law and the Founding-era understanding of a jury’s role. And sentencing based on acquitted conduct slips yet another ace into a deck already stacked against criminal defendants.

The MacArthur Justice Center, in collaboration with the Office of the Federal Public Defender for the Eastern District of Virginia, Americans for Prosperity Foundation, the National Association of Criminal Defense Lawyers, the Cato Institute, and others, asks the Supreme Court to condemn that unconstitutional practice.