Abstract
When Jesus Pimentel-Lopez was found guilty of possession with the intent to distribute methamphetamine, the jury returned a special verdict declaring that he had possessed “less than 50 grams” of the drug in commission of the offense. The sentencing court, however, found that a preponderance of the evidence demonstrated that he had possessed a far greater amount and used this higher amount to calculate his sentence. This sentencing practice is not uncommon; Supreme Court precedent confirms that sentencing courts retain wide discretion to consider acquitted conduct—conduct for which the defendant was found not guilty—at trial as long as this conduct can be proven by a preponderance of the evidence. Further, multiple circuits, operating under the notion that special verdicts signify acquittals of the conduct they assess, leave sentencing courts free to consider facts alternative to those found in a special verdict when calculating a defendant’s sentence.
But, in United States v. Pimentel-Lopez, the Ninth Circuit held that the sentencing court was bound by the jury’s factual determination that Pimentel-Lopez possessed “less than 50 grams,” precluding it from finding a contradictory amount. In its opinion, the Ninth Circuit emphasized that the jury’s unanimous factual finding had not merely acquitted Pimentel-Lopez of possessing an amount lower than fifty grams. This finding is significant because, if the special verdict is neither acquittal nor a finding of guilt, the Pimentel-Lopez court appears to have recognized a novel verdict: a prejudgment declaration of factual innocence.
This Comment explores questions regarding declarations of innocence that surface in light of Pimentel-Lopez’s apparent recognition of a prejudgment declaration of factual innocence. I point out that declarations of innocence could be used to provide clarity to juries, judges, and societal actors; give meaning to the rhetoric of innocence in American jurisprudence; ensure consistency with the current post-trial exoneration practice; and prevent judicial abuses. Yet, at the same time, these declarations of innocence could confuse jurors, usurp judicial authority, and disrupt current judicial practices. I ultimately conclude that declarations of innocence should be used only to determine a specific category of facts—specific offense characteristics and adjustments under the Federal Sentencing Guidelines—in order to optimize their benefits and minimize their negative consequences.
