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Relevant Conduct in the Federal Sentencing Guidelines: Acquittals and Uncharged Conduct

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 Are federal judges limited to considering only final convictions in sentencing? Yes. After Nelson, arguably they must ignore facts of past acquittals, dismissals, or uncharged crimes.

Federal criminal laws are violated all over the country.  There can be money laundering and drug trafficking in Alaska or Hawaii just as well as North Texas or South Florida.   Of course, each state establishes its own penal code which operates independently from the federal system.  State criminal laws vary greatly in defined crimes and scope of sentencing from both their neighboring states as well as federal law.  (A prime example: the death penalty.)

Guidelines’ Purpose: Fairness in Sentencing

Spanning the entire country means the federal scheme overlaps the individual state criminal justice systems.  This should not mean that someone facing federal charges in one part of the country should receive different treatment in sentencing than someone in another region of the United States.

Every defendant facing federal charges should be treated equally and uniformly, from investigation to prosecution to sentencing. 

This is the reason for the creation and development of the Federal Sentencing Guidelines Manual, pursuant to the Sentencing Reform Act of 1994.  Congress established these Guidelines to bring “transparency, consistency, and fairness” to federal sentencing no matter where the sentencing hearing takes place.  See, Executive Summary, United States Sentencing Guidelines Manual, page iv.

Many argue the Sentencing Guidelines have failed.  It is true they are no longer mandatory, but discretionary pursuant to the Supreme Court’s ruling in United States v. Booker.  Some argue that Booker has had little effect in the courtroom.  For more, read the arguments of the Honorable Nancy Gertner (Retired) from her experience as a sitting federal judge.  Gertner, Judge Nancy. “Judicial Discretion in Federal Sentencing—Real or Imagined?” Federal Sentencing Reporter 28.3 (2016): 165-166.

For another, there are continued criticisms of how the Sentencing Guidelines allow uncharged crimes, dismissed charges, and acquittals to be included in sentencing.  See, e.g., Johnson, Barry L. “The puzzling persistence of acquitted conduct in federal sentencing, and what can be done about it.” Suffolk UL Rev. 49 (2016): 1.

Consider acquittals. If you are acquitted of a federal crime, then you have been freed and released.  You were found “not guilty” of the charge.  Why should this past experience be held against you in a future sentencing hearing? 


Calculation of Sentence with the Federal Sentencing Guidelines Manual

The United States Sentencing Guidelines Manual (USSG) has been created by the Sentencing Commission.  It is used in federal criminal cases to determine a range of sentences in a particular case.  The suggested sentence is calculated using the USSG.  The result is provided in a report to the federal judge who presides over the defendant’s sentencing hearing.  The judge imposes a sentence based upon federal law, the USSG, and his or her judicial discretion.

For details on how calculations are made using the Federal Sentencing Guidelines Manual, see our earlier discussions in:

  1. Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases; and
  2. Federal Sentencing Guidelines on Federal Child Pornography Cases.

Ideally, all defendants charged and convicted of a specific federal crime sharing analogous criminal histories should receive the same sentence, as they are calculated using the Guidelines, no matter which Federal District Court hears their case.  How?  The USSG attempts to come up with a uniform sentence for all federal cases based on certain predetermined factors.

Those factors will cause the “offense level” to go up or go down, and the “criminal history category” to increase or decrease, under the Guidelines’ criteria.  For many reasons, the single biggest factor in this determination will be the defendant’s “relevant conduct.”

The Relevant Conduct Provisions of USSG 1B1.3

Relevant conduct is defined in USSG 1B1.3.  United States Sentencing Guidelines Manual, Section 1B1.3, page 25-26.  According to the USSG, “relevant conduct” is

(a) CHAPTERS TWO (OFFENSE CONDUCT) AND THREE (ADJUSTMENTS). Unless otherwise specified, (i) the base offense level where the guideline specifies more than one base offense level, (ii) specific offense characteristics and (iii) cross references in Chapter Two, and (iv) adjustments in Chapter Three, shall be determined on the basis of the following:

(1) (A) all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant; and  (B) in the case of a jointly undertaken criminal activity (a criminal plan, scheme, endeavor, or enterprise undertaken by the defendant in concert with others, whether or not charged as a conspiracy), all acts and omissions of others that were—

(i) within the scope of the jointly undertaken criminal activity,

(ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that 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;

(2) solely with respect to offenses of a character for which §3D1.2(d) would require grouping of multiple counts, all acts and omissions described in subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common scheme or plan as the offense of conviction;

(3) all harm that resulted from the acts and omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object of such acts and omissions; and

(4) any other information specified in the applicable guideline.

(b) CHAPTERS FOUR (CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD) AND FIVE (DETERMINING THE SENTENCE). Factors in Chapters Four and Five that establish the guideline range shall be determined on the basis of the conduct and information specified in the respective guidelines. 

 According to the United States Sentencing Commission, regarding “relevant conduct”:

  • The guidelines provision located at §1B1.3 of the Guidelines Manual, which specifies the conduct for which a defendant may be held accountable in the determination of the offense-severity level.
  • The court may find the facts constituting relevant conduct by a preponderance of the evidence standard; a jury trial is not required.
  • Relevant conduct may include the defendant’s conduct as well as the conduct of other participants in a jointly undertaken criminal activity.

The determination of the relevant conduct of a particular offense will also impact (1) the determination of a single offense level for multiple counts of conviction (USSG Chapter 3, Part D), (2) the calculation of criminal history points (USSG Chapter 4), and (3) adjustments for undischarged terms of imprisonment (USSG §5G1.3).

The Principle of Relevant Conduct

To the federal government, “relevant conduct” is more than a factor to consider in sentencing.  It is “a principle that impacts nearly every aspect of guidelines application.”  See, Primer on USSG Prepared by the Office of the General Counsel for the US Sentencing Commission, March 2018, page 1.

From this perspective, “relevant conduct” goes past the actions undertaken by the defendant which led to his or her conviction for the particular federal crime.  It delves into things like jointly undertaken criminal activity, and things that happened (actions and omissions) “beyond the charged offense.”  Id.

From the prosecution’s outlook, the past life of the defendant is ripe with details and facts which should be used against him or her when the sentence is determined and imposed.

From a defense lawyer’s standpoint, there must be limits.  This factor, “relevant conduct,” is supposed to relate directly to the crime for which the defendant pled guilty, or to the conduct the Defendant agreed happened in his plea negotiations.

The Federal Plea Agreement: the Factual Resume

In negotiating a plea in federal court, the defense lawyer works with the Office of the Attorney General to hammer out a plea deal.  As part of this procedure, something called a “factual resume” is prepared and signed by the defendant.  This document is the factual statement that the Defendant is usually required to sign when he enters into a plea agreement.

For an example of a Factual Resume, see the Factual Resume for George Morton published online by the Department of Justice, Office of the U.S. Attorney General for the Northern District of Texas.

Negotiation of a Federal Factual Resume

Once signed, the document is final and proceeds through the system, on its way to the judge at the Sentencing Hearing.

As a criminal defense attorney representing defendants in federal plea negotiations, it is my opinion that what goes into this statement must be carefully negotiated.  The specific words and phrases of the Resume may be discussed and debated pretty heavily with the prosecutor. 

I am very careful about what my client agrees to sign as the final document, because the Factual Resume can have a big impact on his USSG “relevant conduct” determination. 

For example, if the defendant agrees to a loss amount of $1,000,000.00, but he only intended a loss of $500,000.00, and the remaining loss couldn’t have been foreseeable to him, then he shouldn’t have his base offense level increased to the level for a $1,000,000.00 loss. 

This distinction in the calculation of a loss amount in a federal crime can apply in any type of case where there’s a loss amount (2B1.1), drug quantity (2D1.1), number of child porn images (2G2.2), number of guns (2K2.1(b)(1)app. note 5) as well as some others.  

Relevant Conduct in the Individual Sentencing

Once the Factual Resume is executed and finalized, the conduct that is detailed within the document will be used to determine the “relevant conduct” considered in the Sentencing Guidelines calculations.  With an effective defense, it can limit the conduct that can be used in the USSG calculation, keeping the convicted defendant from being held accountable for more than he otherwise might be.  As the Sentencing Commission notes, “sentencing accountability is not always the same as criminal liability.”

In the particular defendant’s case, “relevant conduct” under USSG 1B1.3 will be determined for purposes of sentencing as follows:

  1. Acts committed, aided, abetted, counseled, commanded, induced, procured or willfully caused by the defendant; and
  2. Acts of others that were within the scope of the jointly undertaken criminal activity, or in furtherance of that criminal activity, and or reasonably foreseeable in connection with that criminal activity;
  3. That occurred during the commission of the offense of conviction, in preparation for that offense, or to avoid detection or responsibility for the offense of conviction.
  4. For offenses included at USSG §3D1.2(d), Relevant Conduct also includes acts of the defendant and acts of others within the jointly undertaken criminal activity that were the same course of conduct or common scheme or plan as the offense of conviction.
  5. Additionally, all harm that resulted from the acts described above will be considered relevant, along with
  6. Any other information outside of the above analysis that is specified in the applicable guideline for the defendant’s case.

What about Acquitted Charges?  Uncharged and Acquitted as Relevant Conduct under Watts

Until last year, the major guidance provided by the United States Supreme Court (SCOTUS) for using uncharged or acquitted charges as “relevant conduct” in a calculation under the USSG was found in United States v. Watts, 519 U.S. 148, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997).

Under Watts, the standard practice in federal court is that uncharged or even acquitted conduct can be added to a defendant’s relevant conduct for the other counts for which he’s convicted, as long as it can be (1) proven by a preponderance of the evidence and (2) it is related in some way to the crime of conviction.

From Watts:

“… 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.”  Watts, 519 U.S. at 157.

Unfairness after Watts

The problem with an application of Watts in criminal sentencing was the practice resulted in sentences that far exceeded the defendant’s expectation when he pleads guilty.   The defendant agrees to a plea deal, and he thinks he is pleading guilty to crime “A” – but under Watts, he ends up with a sentence for crime “A” as well as crime “B.”  He may never have been charged with crime “B.”  Or he may have been charged, tried, and acquitted of crime “B.”

The application of Watts in sentencing has been very frustrating for criminal defense lawyers, as well.  As much as defense attorneys try, we cannot accurately predict the application of the USSG in a particular sentencing hearing, when a defendant gives up all his rights in order to plead guilty and Watts allows this expansion of “relevant conduct.”

2017 SCOTUS Ruling in Nelson v. Colorado

In April 2017, the Supreme Court of the United States decided the case of Nelson v. Colorado, 137 S. Ct. 1249, 581 U.S., 197 L. Ed. 2d 611 (2017). In this opinion, the practice established by Watts for including uncharged and acquitted charges as “relevant conduct” in the USSG calculations has been called into question.  How?

In Nelson, the High Court holds that acquitted conduct simply restores the defendant to the status of “presumed innocent” for the conduct he was acquitted.  From Nelson, 581 U.S. at 1355-56, discussing the application of the Colorado Exoneration Act:

“But once those convictions were erased, the presumption of their innocence was restored. See, e.g., Johnson v. Mississippi, 486 U.S. 578, 585, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988) (After a “conviction has been reversed, unless and until [the defendant] should be retried, he must be presumed innocent of that charge.”).

“[A]xiomatic and elementary,” the presumption of innocence “lies at the foundation of our criminal law.” Coffin v. United States,156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895).Colorado may not retain funds taken from Nelson and Madden solely because of their now-invalidated convictions, … for Colorado may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

Effect of an Acquittal after Nelson

The Supreme Court is clear in Nelson:  if a person “adjudged guilty of no crime” or whose “convictions were erased” then their “innocence is restored.”

SCOTUS goes so far as to state this is at the “foundation of our criminal law.”  Id.

This gives us a clear argument against using acquittals or uncharged conduct against a defendant when calculating a proposed sentence under the Sentencing Guidelines.  Right?

Well, there is a hurdle to jump here, from a defense standpoint.  As strong as this language is in the Nelson opinion, the case does not deal with the USSG. 

It deals with the application of the Colorado Exoneration Act, and its application regarding restitution money that Shannon Nelson paid as a result of her conviction, which was later overturned on appeal. 

Defense lawyers must expect prosecutors to argue that Watts held an acquittal is not a finding of innocence for purposes of sentencing, and be ready to counter that with the language of Nelson, which clearly holds that an acquittal is a return to a presumption of innocence, and therefore bars any penalty being assessed thereafter regarding the circumstance.

Defending in Federal Sentencing Hearings

What does this mean for those facing a sentencing hearing in federal court today?  Things are not clear.

Defense lawyers must be aggressive in arguing the application of Nelson in each case.

  • Briefing may need to be provided to the federal judge for his or her consideration prior to the hearing itself.
  • At the sentencing hearing, proper objections should be made to all uncharged relevant conduct to which the defendant never stipulated in his factual resume.

Defense lawyers cannot rely on old habits of the past, with the procedures long established by 1997’s Watts decision.

Obviously, this issue will need to be litigated before the Supreme Court of the United States.  We all know that we will ultimately have the High Court providing specific instructions on the extent to which uncharged, dismissed, or acquitted conduct can be used to increase the base offense level under the “relevant conduct” provision of the USSG.

In the interim, it is very important that all criminal defense lawyers who handle federal criminal cases be aware of this new wrinkle in the law.  Nelson is good law, and Nelson promotes fairness in the imposition of sentencing in federal court.  Let’s be zealous in asserting it. 


For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations .”






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