Sentencing Commission Proposes Amendment to Limit ‘Acquitted Conduct’

The guidelines that permitted consideration of such conduct were much maligned by the criminal defense bar but had previously survived constitutional scrutiny before the US Supreme Court in Watts v. United States, 519 U.S. 148 (1997). Subsequently, unsuccessful legal challenges and lack of action by US Congress left the guidelines intact for years.

More specifically, the “Relevant Conduct” guideline in Section 1B1.3, and two other guidelines (Sections 1B1.4 and 6A1.3), effectively allowed judges to reconcile purportedly inconsistent results at trial. Criminal trials often end with “mixed verdicts,” that is, defendants are convicted of various offenses, but acquitted on others, even though the underlying conduct arguably provided evidence of guilt for all of the offenses. Courts sometimes even considered uncharged conduct in determining the appropriate sentence. In considering “acquitted conduct,” however, judges were required to find only that a preponderance of the evidence supported the defendant’s guilt of an acquitted offense or conduct, a threshold far below the reasonable doubt standard at trial. As a result, criminal defendants often received lengthier sentences based on evidence that juries rejected under the beyond-a-reasonable-doubt standard.

Following the Commission’s unanimous decision, judges may consider conduct underlying an acquitted offense only if “such conduct also establishes, in whole or in part, the instant offense of conviction.” With that qualification, the Commission seemingly reconciled two issues: (1) judges still possess broad, flexible discretion to craft appropriate sentences based upon all the circumstances of each case; but (2) defendants can no longer receive a lengthier sentence based upon a judge’s finding of guilt for an alleged crime based on conduct independent of a count of conviction. The rule will most likely help defendants who are accused of disparate offenses and acquitted on one category of offenses, as the court should avoid increasing a sentence based on such alleged conduct. It still remains to be seen, however, whether the caveat ends up swallowing the benefit of the new rule, especially in cases where the parties dispute whether certain acquitted conduct helped establish the offense of conviction.

A majority of the Commission also voted to publish notice of a potential future vote on whether to make the amendments to the “acquitted conduct” guideline retroactive, which could result in reduced sentences for thousands of defendants currently serving prison terms. Unless Congress elects to respond to the Commission’s actions, the guideline amendment becomes effective on November 1.

A separate proposed amendment adopted by the Commission relates to a defendant’s intended loss amount under Section 2B1.1 of the Guidelines, an issue that often arises in fraud or theft cases. The original guideline provided an increase in the offense level based on the amount of loss the defendant caused, with a loss table that tied the specific increase to the loss amount, and Application Note 3(A) explained that the loss amount should be the greater of the actual or intended loss.

In United States v. Banks, 55 F.4th 246 (3d Cir. 2022), however, the Third Circuit ruled that the application note was not entitled to deference because the guideline unambiguously applies only to actual loss — not intended loss — which conflicts with the actual guideline. The proposed amendment seeks to abrogate Banks and restore uniformity among the Circuit Courts by moving intended loss as an alternative measure to actual loss, and certain other application notes, from the commentary to the guideline itself in Section 2B1.1(b).

The Commission’s press release with a link to the proposed amendments can be found here. We will continue to monitor these issues for developments.