United States Sentencing Guideline Amendment Prohibits Judges from Considering Acquitted Conduct at Sentencing

On April 17, 2024, the bipartisan United States Sentencing Commission voted unanimously to prohibit conduct for which a defendant was acquitted in federal court from being used to calculate a sentence range under the United States Sentencing Guidelines (USSG). The Commission also passed additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. (The amendments submitted to Congress can be found at this link - 202404_prelim-rf.pdf (ussc.gov)). If there is no further congressional intervention, the amendments will be effective on November 1, 2024.

Acquitted conduct is not expressly addressed in the USSG except for a reference in the parenthetical summary of United States v. Watts, 519 U.S. 148 (1997). See USSG §6A1.3, comment. Consistent with Watts, consideration of acquitted conduct is permitted through §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), §1B1.4 (Information to be Used in Imposing Sentence) and §6A1.3 (Resolution of Disputed Factors (Policy Statement)). Section 1B1.3(a)(1) provides that relevant conduct comprises “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant,” and all acts and omissions of others “in the case of a jointly undertaken criminal activity,” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” Relevant conduct also includes, for some offenses, “all acts and omissions described in subdivisions … that were part of the same course of conduct or common scheme or plan as the offense of conviction,” “all harm that resulted from the acts and omissions …, and all harm that was the object of such acts and omissions,” and “any other information specified in the applicable guideline.” See USSG §1B1.3(a)(2)–(a)(4). The background commentary to §1B1.3 explains that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline sentencing range.” (Emphasis added). Section 6A1.3(a) further provides, in pertinent part, that “[i]n resolving any dispute concerning a factor important to sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” (202404_prelim-rf.pdf (ussc.gov))

In fiscal year 2022, nearly all sentenced individuals (62,529; 97.5%) were convicted through a guilty plea. The remaining 1,613 sentenced individuals (2.5% of all sentenced individuals) were convicted and sentenced after a trial, and 286 of those sentenced individuals (0.4% of all sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser included offense. Id. This group of defendants’ sentences could be impacted by this amendment.

The proposed amendment would amend the USSG to address the use of acquitted conduct for determining a sentence. It would provide that relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction. It also would add Application Note 10 to the Commentary of §1B1.3, which would note that there may be cases in which conduct underlies both an acquitted charge and the instant offense of conviction. In those cases, the court is in the best position to determine whether such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct. Id.

Takeaways

While this amendment is a positive development for federal criminal defendants, the impact of the amendment is unclear. For example, acquitted conduct could be considered in calculating the Guideline level if the acquitted conduct “also establishes, in whole or in part, the instant offense of conviction.” In some cases, that may be difficult to determine and there could also be complications when there are inconsistent verdicts. Moreover, uncharged conduct is not acquitted conduct. Thus, it is possible that AUSAs could draft indictments to maximize uncharged conduct and potentially reduce acquitted conduct. Finally, the panel was divided on whether the amendment would apply retroactively and left that issue open. Despite these unknowns, the amendment is a positive development for federal defendants, and particularly those in white collar criminal cases, where acquittals on some counts tend to be more common than with other crimes.