USSC Limits (But Does Not End) Use of Acquitted Conduct in Federal Sentencing

On April 17, 2024, the United States Sentencing Commission (“USSC”) announced that after an unanimous vote of the bipartisan group, the United States Sentencing Guidelines (“USSG”) will change regarding how a past acquittal in federal court can be used in a subsequent federal matter to calculate a sentence under the USSG.

• For details on acquitted conduct considerations in federal sentencing, read our earlier discussion in SCOTUS, USSC, And Proposed USSG Amendment Addressing Acquitted Conduct.

The change is big, but not unexpected.  As the USSC announced, it has voted to “… prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines.”  The change came alongside other reforms to the guidelines; among them, those involving a select group of gun crimes and financial criminal statutes.

From USSC Chair Judge Carlton W. Reeves:

“Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

Absent Congressional action, this new USSG change will be effective on November 1, 2024.

Amended USSG 1B1.3

Specifically, the new Acquitted Conduct Guideline will appear as follows in Section 1B1.3 (emphasis added):

in subsection (a), in the heading, by striking “Chapters Two (Offense Conduct) and Three (Adjustments).” and inserting “Chapters Two (Offense Conduct) and Three (Adjustments).—”;

in subsection (b), in the heading, by striking “Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).” and inserting “Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).—”; and

by inserting at the end the following new subsection (c):

“(c) Acquitted Conduct. — 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.”

Big Question here:  Does this get rid of any ability for the government to consider acquitted conduct in federal sentencing?  And the answer is: No, it does not.

First of all, within the Amendment itself is the exclusion for conduct related to “… in whole or in part, the instant offense of conviction.”  However, that’s not all.  What about state court proceedings, or acquittals involving juvenile courts or tribal matters?  Those are, apparently, still on the table. The Amendment only pertains to “… conduct for which the defendant was criminally charged and acquitted in federal court ….”

• Read the complete Amendment with its Notes and Commentary here.

Acquitted Conduct Can Still Be Used in Federal Sentencing Under the 1B1.3 Amendment

As unfair as it may seem, especially to the criminal defense bar and their clientele, the USSC has not entirely removed acquitted conduct from consideration at a sentencing hearing.  After November 2024, as things stand right now, there is still the reality that federal judges can increase the punishment for defendants based upon the defendant’s past conduct even if they were acquitted by a jury.

What the USSC did in its unanimous voting was to stop federal judges in the calculation of applicable sentencing with the USSG Sentencing Tables to throw federal acquitted conduct into the tally of points involving the type of offense and past criminal history.  And this, only if the Amendment’s exception does not allow it (there is an exclusion for conduct related to “… in whole or in part, the instant offense of conviction”).

For more on how sentences are calculated under the USSG Sentencing Tables, read our earlier discussions (which include examples with images from the Tables) in:

• Money Laundering and Federal Sentencing Guidelines;
• Federal Sentencing Guidelines On Federal Child Pornography Cases;
• Federal Crimes and Sentencing Guidelines: Health Care Fraud;
• Methamphetamine Trafficking and Federal Sentencing; and
• Relevant Conduct In The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.

What is Acquitted Conduct in Federal Sentencing?

Two cornerstones of any criminal defense are to protect against violations of Fifth and Sixth Amendment of the United States Constitution, where the accused is given both the rights of due process under the law and the right to a jury trial.  Stakes can be high.

Prosecutors must prove their allegations of criminal acts by the defendant at a very high evidentiary burden, that of guilt beyond a reasonable doubt.  This must be done with evidence that has been authenticated and admitted under proper legal protections.  The jury should only hear witness testimony and see documentation that has passed defense scrutiny and things like motions to suppress and motions to exclude evidence.

If the AUSA meets the burden of persuasion and proof, and the jury returns a guilty verdict the defendant will be convicted.  However, if the prosecution fails to do so, then the jury comes back with a not guilty verdict and the defendant is acquitted.

That should be the end of it, from a defense lawyer’s viewpoint.  But that’s not true today.  Right now, and even after the USSG Amendment in November 2024, federal judges can take past conduct involved in the acquitted case and use it in a pending sentencing hearing.

The federal judge can “enhance” the sentence, increasing the punishment in the number of years to be served behind bars, if they find that the accused was involved in past criminal activity.  It gets worse:  the standard here to prove up that past criminal activity needs only be at the “preponderance of evidence” standard which is the same as a civil trial.  It is much lower that the “reasonable doubt” standard used in criminal trials themselves.

SCOTUS and Acquitted Conduct

Obviously, this is very unfair and flies in the face of our founding father’s intent.  And of course, this has been taken up for review to the Supreme Court of the United States (SCOTUS).

Almost 30 years ago, SCOTUS issued its opinion in United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997), which gave federal judges the power to use acquitted conduct when deciding upon a defendant’s sentence in USSG calculations.   Last year, despite an opportunity to protect against allowing acquitted conduct as determined by a jury to be used in sentencing, SCOTUS declined to change things.

Certiorari was not granted in McClinton v. United States, 143 S. Ct. 2400, 600 U.S. (2023).  The McClinton case was a prime example of injustice at work:  there, despite a recommended range of 5-6 years under the USSG on the crime of robbing a CVS Pharmacy, acquitted conduct involving a related murder charge resulted in an enhanced sentence of 20 years imprisonment.

Several justices in that case (Barrett; Gorsuch; Kavanaugh; and Sotomayor) did suggest that future reconsiderations might be different if the USSC did not amend the guidelines accordingly.  From Justice Sotomayor:

“The Court’s denial of certiorari today should not be misinterpreted. The Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted-conduct sentencing in the coming year. If the Commission does not act expeditiously or chooses not to act, however, this Court may need to take up the constitutional issues presented.”

McClinton, 143 S.Ct. at 2043.

The Commission listened.  In December 2023, USSC Chair Reeves confirmed in a press release that “…[w]hen the Supreme Court tells us to address an issue, the Commission listens….”  The result is the April 2024 USSG Amendment.

However, the USSC’s actions have not totally blocked judges from being able to consider acquitted conduct in their sentence.  It can still happen – but there is hope in criminal defense circles that Congress will fix this.

Congress May Step In to Fill the Gap Left by USSC in Acquitted Conduct Amendment

Right now, there is pending legislation before Congress that attempts to fill this gap in a bill entitled the “Prohibiting Punishment Of Acquitted Conduct Act.”  Read, “Durbin Applauds Sentencing Commission’s Unanimous Vote to Prohibit Acquitted Conduct from Being Used in Sentencing Guidelines,” released to the press by U.S. Senate Majority Whip Dick Durbin (D-IL), Chair of the Senate Judiciary Committee on April 18, 2024.

From Senator Durbin:

“Under our Constitution, defendants can only be convicted of a crime if a jury of their peers finds they are guilty beyond a reasonable doubt.  However, federal law inexplicably allows judges to override a jury verdict of ‘not guilty’ by sentencing defendants based on acquitted conduct.  This practice is inconsistent with the Constitution’s guarantees of due process and the right to a jury trial.  That’s why I applaud the Sentencing Commission’s important step to limit the use of acquitted conduct.  This unjust practice must be prohibited under federal law.”

What will the proposed Prohibiting Punishment of Acquitted Conduct Act do?

If it becomes law, then this new legislation will do two things:

1. It will amend 18 U.S.C. § 3661.

Currently, this federal law provides that “[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”

The revised federal criminal statute will block any federal court to consider acquitted conduct at sentencing unless it helps to mitigate the sentence (lower it).

2. It will expand the definition of “acquitted conduct” to encompass other jurisdictions.

It will provide a specific and expansive statutory definition of “acquitted conduct” for reference.  This definition extends not only to federal proceedings but to any acquittal (1) after a trial by jury or (2) after a dismissal based upon a motion for acquittal in state courts, tribal proceedings, and juvenile courts.

The bill text is available for review here.

Acquitted Conduct and Criminal Defense in Texas

Today, it is possible for federal judges in a criminal case to boost the sentence of a defendant by a shocking amount of time behind bars if that judge decides that it was more likely than not that the defendant committed a criminal act for which he was acquitted by a jury.

This is true for acquittals regardless of their origins; however, this will change in November 2024 according to the amendment of USSG 1B1.3 for “… conduct for which the defendant was criminally charged and acquitted in federal court ….”

Things won’t change when the accused has a past Texas Penal Code acquittal in their file, for instance.  Fingers crossed, the conundrum of acquitted conduct being used in sentencing may become a thing of the past in its entirety if the proposed Prohibiting Punishment of Acquitted Conduct Act becomes law.   The federal statute will umbrella other jurisdictions here, such as state proceedings and juvenile histories.

Until then, criminal defense attorneys must be prepared to deal with advocating against the use of acquitted conduct as best they can in federal sentencing hearings.  The constitutional arguments raised in McClinton remain at the ready – and remembering that the arguments of Justice Sotomayor bear careful consideration (quoting from her statement) (footnotes and citations omitted):

1. While the ultimate sentencing decision is discretionary, “[t]he Guidelines are the framework for sentencing and anchor the district court’s discretion.” 
2. As many jurists have noted, the use of acquitted conduct to increase a defendant’s Sentencing Guidelines range and sentence raises important questions that go to the fairness and perceived fairness of the criminal justice system.
3. Juries are democratic institutions called upon to represent the community as “a bulwark between the State and the accused,” and their verdicts are the tools by which they do so. Consistent with this, juries were historically able to use acquittals in various ways to limit the State’s authority to punish, an ability that the Founders prized.
4. With an acquittal, the jury as representative of the community has been asked by the State to authorize punishment for an alleged crime and has refused to do so.
5. This helps explain why acquittals have long been “accorded special weight,” distinguishing them from conduct that was never charged and passed upon by a jury.
6. This special weight includes traditionally treating acquittals as inviolate, even if a judge is convinced that the jury was “mistaken.” 
7. Because an acquittal could reflect a jury’s conclusion that the evidence of guilt fell just short of the beyond-a-reasonable-doubt standard, the argument goes, there is no conflict with a judge making a contrary finding of guilt under a lower evidentiary standard. Yet there is a tension between this narrower conception of an acquittal and the manner in which juries historically used acquittals.
8. Further, an acquittal could also reflect a jury’s conclusion that the State’s witnesses were lying and that the defendant is innocent of the alleged crime. In that case, it is questionable that a jury’s refusal to authorize punishment is consistent with the judge giving the defendant additional years in prison for the same alleged crime.
9. The fact is that even though a jury’s specific reasons for an acquittal will typically be unknown, the jury has formally and finally determined that the defendant will not be held criminally culpable for the conduct at issue. So far as the criminal justice system is concerned, the defendant “has been set free or judicially discharged from an accusation; released from a charge or suspicion of guilt.”
10. There are also concerns about procedural fairness and accuracy when the State gets a second bite at the apple with evidence that did not convince the jury coupled with a lower standard of proof. Even defendants with strong cases may understandably choose not to exercise their right to a jury trial when they learn that even if they are acquitted, the State can get another shot at sentencing.
11. Finally, acquitted-conduct sentencing also raises questions about the public’s perception that justice is being done, a concern that is vital to the legitimacy of the criminal justice system. Various jurists have observed that the woman on the street would be quite taken aback to learn about this practice.
12. This is also true for jurors themselves. One juror, after learning about acquitted-conduct sentencing, put it this way: “`We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice …. What does it say to our contribution as jurors when we see our verdicts, in my personal view, not given their proper weight. It appears to me that these defendants are being sentenced not on the charges for which they have been found guilty but on the charges for which the District Attorney’s office would have liked them to have been found guilty.'” 
13. In this Nation, juries have historically been venerated as “a free school … to which each juror comes to learn about his rights.” One worries about the lesson jurors learn from acquitted-conduct sentencing.

Also read:

• Federal Law: Sentencing and the Federal Sentencing Guidelines Manual
• Categorical Approach: Longer Federal Sentences With Past Convictions
• Retroactive US Sentencing Guideline (USSG) Amendments 2023
• Alien Smuggling in Texas: Federal Felonies & United States Sentencing Guidelines
• When Someone Becomes a “Career Offender” under Federal Law
• Federal Sentencing for Zero-Point Offenders: New USSG §4C1.1 Effective November 2023.

______________________

For more information, check out our web resources, read Michael Lowe’s Case Results, and read,” Pre-Arrest Criminal Investigations” and “What Happens When You Plead Guilty to Federal Drug Crime? From Guilty Plea to Sentencing Hearing in a Drug Case.”