Acquitted conduct to be reviewed by SCOTUS?

In Stroud v. United States, No. 12-6877, a case from the 8th Circuit, the U.S. Supreme Court will soon decide whether to review the constitutionality of a sentencing court's use of acquitted conduct in federal sentencing.  Stroud is asking the Court to review United States v. Watts, 519 U.S. 148, 157 (1997), which held that "a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence."

According to Mr. Stroud's petition for writ of certiorari, the issues presented in the case are as follows:

1. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate petitioner’s right to trial by jury of the Sixth Amendment to the Constitution?

2. Does the use of conduct for which petitioner was acquitted by a jury in a prior state trial to enhance petitioner’s federal sentence violate the due process clause notice requirement of the Fifth Amendment to the Constitution?

The case was originally scheduled for the Court's conference of November 20, 2012.  But the Court requested that the Government file a response to Stroud's petition (which the Government filed on February 6, 2013).  The Court's request for a response might be a sign that the Court is interested in reconsidering the decision in Watts.

As blogged about here and here, in the Alleyne case, the Supreme Court may be in the process of expanding the Sixth Amendment jury-trial requirements of Apprendi to facts that enhance mandatory minimum sentences.  If this occurs, it is not a stretch to think that the next step might be to hold that the Sixth Amendment prohibits the use of acquitted conduct from enhancing a defendant's sentence in any way.  Needless to say, the use of acquitted conduct in sentencing should be objected to, and the issues preserved for appeal.

[Update: SCOTUS denied Mr. Stroud's petition for writ of certiorari on March 18, 2013, leaving this issue unanswered.]