Diddy: The Appeal

The jury took two and a half days. It acquitted Sean Combs of racketeering conspiracy and both counts of sex trafficking by force, fraud or coercion — the charges that carried life — and convicted him on two counts of transporting people across state lines for prostitution, a 1910 statute that his lawyers say typically draws a year or less. Judge Arun Subramanian sentenced him to fifty months, a $500,000 fine, and five years of supervision on conditions that include an approved domestic-violence program and no contact with the victims in the case. The appeal argued in April is not about whether the jury got it right. It is about which verdict he is serving.

The rule at the center of it is two years old. In April 2024 the Sentencing Commission voted unanimously to add subsection (c) to Guideline §1B1.3, barring courts from counting acquitted conduct when they calculate a range — unless that conduct also establishes, in whole or in part, the offense of conviction. Its chair, Judge Carlton Reeves, put the point in four words: not guilty means not guilty. Subramanian opened the sentencing by noting that no court had yet offered guidance on how the new provision should be applied, called it ambiguous, and read the exception as a relevancy test: conduct comes in if it tends to prove an element of the crime of conviction. Applying it, he found that Combs had threatened to release videos of Ventura and to stop paying Jane’s rent, added four points for fraud or coercion and four for leadership, and grouped the counts by victim. The offense level came out at 27 — a range of 70 to 87 months.

He did not give the government everything. He declined the cross-reference for threats of fear, which he said would have had a dramatic effect on the range. He declined enhancements for serious bodily injury and for obstruction, the latter sought over notepads marked “legal” in Combs’s cell. He declined a vulnerable-victim enhancement, reasoning that what made the coercion work was the victims’ vulnerability, so the coercion finding already accounted for it. He rejected the defense position that Ventura and Jane were not victims at all, and that the men hired as escorts were not either. Prosecutors asked for 135 months; the Probation Office recommended 60; the defense asked for 14. He imposed 50 — below the range he had just calculated — with a $500,000 fine he called an upward variance. He never explained how he got from 87 to 50, and that silence is now load-bearing. The government says a below-range sentence shows the enhancements weren’t what drove it. Combs says a sentence anchored to a range that was too high has to go back regardless. Outside the courthouse that afternoon, Marc Agnifilo said the judge had acted as a thirteenth juror, and counted him invoking coercion a dozen times from the bench.

Two sets of amici filed for Combs. One was the National Association of Criminal Defense Lawyers. The other was three law professors: Douglas Berman, John Blume, and John Gleeson, the retired federal judge who was sitting on the Sentencing Commission when it wrote the rule. Their brief tells the court that the exception was drafted for a narrow case — mixed verdicts on charges sharing an element, where the conviction proves the jury found the fact — and that reading it as a relevance test collapses it into the thing it was meant to carve out.

The argument was scheduled for twenty minutes and ran two hours, before Judges William Nardini and Sarah Merriam and, sitting by designation, M. Miller Baker of the Court of International Trade — a customs and trade judge drafted onto the most closely watched criminal appeal in the country. Nardini opened by reminding Alexandra Shapiro that the circuit has already held it constitutional for a sentencing judge to consider acquitted conduct, and the panel spent the rest of the morning trying to find out what the new guideline changed. Both sides were asked, in nearly identical terms, to state a rule the court could put in an opinion. Neither produced one that satisfied the bench. A judge posed a hypothetical — a defendant acquitted of first-degree murder, convicted of second — and asked whether the judge could then find premeditation by a preponderance and sentence accordingly. Told yes, he observed that his hypothetical looked like the thing the amendment was written to prevent. Christy Slavik, arguing for the government, offered the eight-week record as a pizza from which the judge had taken only a slice. The metaphor was declined. The panel called the professors’ brief helpful and noticed what was missing from it: they had backed Combs on coercion and leadership and stopped there, declining to join him on the grouping. Nardini closed by calling it an exceptionally difficult case, and a question of first impression not only for the Second Circuit but, as far as the panel could tell, for any federal appeals court.

Two exchanges cut closer to the people involved. The leadership enhancement requires five criminally responsible participants, and when the court asked the government to count them, the five were Combs, two owners of an escort service, and Casandra Ventura and the woman who testified as Jane — the two women the government had spent the trial describing as victims. Later, pressed on what actually drove the sentence, the government said it rested on admitted conduct, including physical abuse Combs conceded from the outset. The bench pushed back using the district court’s own words: that he plied both women with drugs, forcing Ventura into addiction. Plying and forcing, one judge noted, do not sound like something other than coercion.

The conviction itself is also on appeal, and its oddity is already on the record. At trial Combs asked the court to define prostitution for the jury as sexual activity for money or its equivalent. Subramanian gave that instruction, and the jury convicted under it. Combs then argued the definition had been wrong all along — that prostitution requires a commercial motive, or that the person paying must be the person having sex, neither of which describes what he was convicted of doing. Three days before sentencing, the district court held the argument wasn’t waived and rejected it anyway: the Supreme Court had walked away from Caminetti’s “for hire or without hire” reading by 1946, Congress cut the Act’s debauchery and immoral-purpose clauses in 1986, and a rule requiring the buyer to be a participant would narrow prostitution almost out of existence. The First Amendment claim failed on the finding that he wasn’t producing anything — the pornography cases he relies on turn on a purpose to film a performance. The government’s brief on appeal follows that opinion closely. At the podium in April, the defense rested on its papers.

Fifteen days later, the question moved. Asked from the bench whether the issue was working its way through any other circuit, Shapiro said her colleague had just advised her of a case pending in the First. On April 24 it came down. United States v. Shafa involves a Massachusetts psychiatrist convicted of importing misbranded addiction drugs from Hong Kong and acquitted of conspiracy and felony misbranding, whose sentence was then calculated under the fraud guideline. The First Circuit did not resolve it either — it kept the appeal and sent the case back for the district judge to say what conduct he had found and whether the acquittals covered it. But it instructed him, on remand, that it rejects the government’s position that “establishes” sweeps up all relevant conduct: the word requires conduct that proves an element of the offense. That is nearly the test Combs is asking for, and some distance from the one Subramanian used. Shafa’s sentence, like Combs’s, was below his calculated range. It went back regardless.

The panel reserved decision. Combs was not in the courtroom; he is at Fort Dix, and the appeal was expedited precisely so a ruling might arrive in time to matter. Subramanian was right that no court had told him what the rule meant. One has now started to, in a case about naltrexone pellets rather than freak-offs, and the Second Circuit has had that opinion since April. Shapiro closed on the twelve New Yorkers who gave up two months of their lives, heard thirty-four witnesses, and returned a verdict of not guilty on the most serious counts — and on what that is worth if the sentence rests on those counts anyway.