Document Type


Publication Date

Summer 1994


The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised a convenient yet dangerous fiction in the form of the “punishment-enhancement” distinction. According to this theory, a sentence enhancement does not constitute punishment. The distinction is particularly convenient in the double jeopardy setting. According to the Supreme Court, double jeopardy “protects against a second prosecution for the same offense after acquittal[,] . . . a second prosecution for the same offense after conviction[, and] . . . against multiple punishments for the same offense.” Because a defendant whose sentence is “enhanced” for an unadjudicated crime is neither “punished” nor tried for that offense, the Double Jeopardy Clause is not technically implicated.

This Article takes issue with the “prior-conviction analogy,” rejecting the notion that prior convictions and unadjudicated crimes are sufficiently similar to warrant equal treatment under the Constitution. Part I of this Article uses McCormick to illustrate the subsequent-prosecution dilemma under the Guidelines, describes the Second Circuit's solution, and discusses the traditional response to the problem. Part II questions the prior-conviction analogy, concluding that prior conviction enhancements are entirely consistent with the history and underlying values of the Double Jeopardy Clause. Part II concludes that the Second Circuit was correct in holding that relevant conduct enhancements under the Guidelines comprise constitutionally cognizable punishment.

Part III recognizes, however, that accurately characterizing a sentence enhancement as punishment does not automatically catapult the subsequent prosecution into a double jeopardy violation. Traditional double jeopardy jurisprudence does not conform gracefully to the sentencing context. In fact, a close analysis of the Second Circuit's approach suggests that the lack of a conviction for the relevant conduct offense in the original proceeding renders the Double Jeopardy Clause incompetent to protect its central purposes.

Part IV concludes that the Second Circuit chose the wrong constitutional remedy. The Double Jeopardy Clause is not designed to address the subsequent-prosecution problem in the sentencing context. It is the Due Process Clause that forbids enhancement in the absence of conviction in the first place. Part IV therefore urges the courts and the Federal Sentencing Commission to abandon the real-offense model once and for all.