The (bipartisan) U.S. Sentencing Commission issued a press release two days ago that announced, among other things, a proposed amendment to the Guidelines that would prohibit federal district judges from considering acquitted conduct when determining a defendant's sentence (a practice that has often resulted in a defendant being punished for acts that a jury determined the government could not prove beyond a reasonable doubt).  This is good news and extends a trend where the current Sentencing Commission – which during the Trump years had an insufficient number of commissioners to amend the Guidelines – has been far less draconian and far more empathetic towards federal offenders than prior Commissions. 

Under the current Guidelines and caselaw, a sentencing court must consider “relevant conduct” when deciding someone's sentence following conviction.  As defense lawyers operating in the federal system know well, relevant conduct can often include any conduct that the judge thinks should have some impact on the overall punishment.  The relevant Guidelines' application note instructs that conduct that has not even been charged or is not actually an element of an offense that has been charged, may be considered “relevant” when fashioning a sentence.  This is usually bad enough, as consideration of relevant conduct is decided by judges—not juries—under a preponderance of the evidence standard.  This has often resulted in someone being given additional months in prison despite not having even been formally accused of engaging in the conduct he or she is being punished for. 

Acquitted conduct—which falls under the umbrella of relevant conduct—is obviously even more unfair.  McClinton v. United States, 600 U.S. ____ (2023) provides a recent example.  The defendant in that case was a member of a group of thieves that robbed a pharmacy.  When the group got together after the heist to divide up the proceeds, one of the robbers killed one of the others in the group.  McClinton was charged with both robbery and murder.  The jury convicted him of the robbery but acquitted him of the murder charge.  With the robbery conviction, McClinton faced about 5.5 years.  At sentencing, however, the district court found that he was also responsible for the murder and imposed a sentence of almost 20 years.  In other words, a jury had already determined that the murder had not been proven beyond a reasonable doubt, but a judge nevertheless determined that the government had proven it by a preponderance of the evidence—that it was simply more likely than not that McClinton was responsible for the co-conspirator's death.

The Supreme Court denied McClinton's petition for a writ of certiorari.  Justice Sotomayor issued a statement regarding the denial that questioned district courts' use of acquitted conduct at sentencing and that examined the tension between a jury's decision to acquit a defendant of some specific conduct and a trial court's job to impose a just sentence that reflects the true “nature and circumstances” of an offense.  Sotomayor's statement was well-reasoned but, of course, did nothing to help McClinton.  But it was another voice in the argument against the use of relevant conduct in federal sentencing. 

Before the McClinton cert denial, the Sentencing Commission itself expressed dissatisfaction with the use of acquitted conduct as relevant conduct.  Last year, the Commission issued a proposed amendment to address acquitted conduct, but then withdrew it pending additional study.  This year, the Commission unanimously voted to propose an amendment to USSG § 1B1.3 (Relevant Conduct (Factors that Determine the Guidelines Range)).  The new proposed sub-section (1(B)1.3(c)) states 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.” 

The proposed amendment leaves no doubt that sentencing judges should not consider acquitted conduct.  The proposed new accompanying application note (which, if the proposed amendment becomes effective, will be new Application Note No. 10), however, is a little more vague.  It states, in pertinent part, that: “There may be cases in which certain 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.”  My guess is that most district courts will steer clear of considering anything close to conduct for which a jury acquitted a defendant, but there can also be no doubt that some judges, well known for harsh sentencing decisions, will take a broad view of the guidance set out in the proposed application note.  It will be interesting to see how those cases develop.

But, in general, this is fantastic news for defendants, and a relief for defense lawyers who have had to explain to clients that the judge in the case added additional punishment even though the client was found not guilty by a jury (applying the reasonable doubt standard mandated by the Sixth Amendment and cases like Apprendi, Alleyne, and Booker) simply because the judge decided that he or she was guilty using a lower quantum of proof (a standard generally used in civil cases).   

As always, proposed amendments to the Guidelines will be delivered by the Sentencing Commission to Congress (this year, that is scheduled to happen on May 1, 2024).  If Congress does not take action to disapprove of this amendment (and the other amendments)—Congress rarely takes any action at all on proposed Guidelines changes—they will automatically become effective on November 1, 2024.