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SCOTUS, USSC, and Proposed USSG Amendment Addressing Acquitted Conduct

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The scenario:  someone is charged with a serious crime in federal court.  There is no plea deal; the case goes to trial.  Both sides rest, and the case goes to the jury.  The jury deliberates and returns with a “not guilty” verdict.

This is great for the accused, right?  Sure.  But that verdict is not the key to freedom.  Freedom comes with the judge responding to that “not guilty” verdict with a formal acquittal entered in the record.

Of importance here: the acquittal is powerful because with it, double jeopardy protections attach pursuant to the Fifth Amendment of the United States Constitution.  This shields the defendant from any attempts by the government to try and prosecute a case again, for the same offense in the same jurisdiction.  For more on double jeopardy, read: Amar, Akhil Reed. “Double jeopardy law made simple.” Yale Law Journal 106 (1996): 1807.

However, the acquittal does not mean that the defendant is deemed innocent.  Legally, an acquittal means the government failed to meet its burden of proving the defendant guilty beyond a reasonable doubt.  This may become a big factor of consideration should the defendant be charged and convicted in the future with another federal crime.

Federal Rule of Criminal Procedure 29: Defense Motion for Acquittal

Acquittals are big deals in any criminal defense case.  They are clearly victories for the defendant.  And they may be achieved before the jury deliberations.  Cornell Law School provides the following definition of an acquittal (emphasis added):

An acquittal is a resolution of some or all of the factual elements of the offense charged. The trier of fact, whether the jury or the court, must render a verdict of finding not guilty of the charged offense. A not guilty finding is an adjudication that proof at a prior proceeding was insufficient to overcome all reasonable doubt of guilt of the accused. One who is acquitted is judicially discharged from an accusation and is absolved. The double jeopardy clause bars appeal and retrial by the prosecutor. See: Const. Amend. 5.

In federal court, the defense attorney achieves an acquittal for the accused through the filing of a motion pursuant to Federal Rule of Criminal Procedure 29 (“FRCP 29”).  FRCP 29 is entitled “Motion for a Judgment of Acquittal,” and provides for an acquittal motion to be filed: (a) after the government has closed its case; (b) after the close of all the evidence and before submission of the case to the jury; (c) after the jury’s verdict; or (d) after the jury has been discharged.  FED. R. CRIM. P. 29(a)(b)(c).

This procedural rule gives an instruction to the trial court judge: a judgment must be entered in the case, one of acquittal, if “…the evidence is insufficient to sustain [the] conviction.” FED. R. CRIM. P. 29(a).  It is important to note that FRCP 29 also allows a trial judge to enter a judgment of acquittal sua sponte: “…the court may on its own consider whether the evidence is insufficient to sustain a conviction.” FED. R. CRIM. P. 29(a).

After the Acquittal

The defendant, after an acquittal, can walk back to live their life without concern about the case.  It’s over.  As long as there are no new charges, of course.  If new federal charges are filed against that person, then this earlier case – with its official acquittal – can return to haunt that defendant in a future sentencing hearing.  The underlying circumstances of that earlier case can be used by the judge in deciding the punishment in the new case.

Acquitted Conduct in Future Sentencing

Since the acquittal resonates with the failure of the government to meet its burden of proof as opposed to the defendant’s innocence of the criminal charges, government arguments have been successfully made that past acquitted conduct of the accused can be used in any future sentencing hearing in a future federal case where there has been a conviction.

It is Unfair and Unconstitutional to Consider Acquitted Conduct in Future Sentencing

From a federal criminal defense attorney standpoint, it is simply wrong to use past conduct that has been considered as part of an acquittal (“acquitted conduct”) in any future determination of punishment of an individual.  Read, Reeves, Carlton W., and Dear Judge Reeves. “FEDERAL DEFENDER SENTENCING GUIDELINES COMMITTEE.” (2023) (“FDSGC”).

Still, this happens today.  And it’s complex.  First of all, the United States Sentencing Guidelines (USSG) are used in all federal sentencing hearings.  (To learn more on the workings of the USSG, read our earlier discussions where we detail how the USSG’s Sentencing Tables with their Offense Levels and Criminal History Points are used to calculate sentences in Money Laundering and Federal Sentencing Guidelines and Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.)

However, the current USSG do not specifically address the use of acquittals and acquitted conduct when a defendant has been convicted on another charge and faces sentencing in federal court.

Instead, SCOTUS has allowed the consideration of acquitted conduct through the application of USSG §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range), in conjunction with USSG §1B1.4 (Information to be Used in Imposing Sentence) and USSG §6A1.3 (Resolution of Disputed Factors (Policy Statement)). United States v. Watts, 519 U.S. 148, 156, 117 S. Ct. 633, 136 L. Ed. 2d 554 (1997).

Acquitted Conduct in Federal Sentencing: How It Works Today

Today, the controlling law of the land regarding acquitted conduct in sentencing can be found in the Watts opinion.  Under the USSG, acquitted conduct is considered as relevant conduct during the federal sentencing hearing.  For more, read our discussion in Relevant Conduct in The Federal Sentencing Guidelines: Acquittals and Uncharged Conduct.

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.

In our earlier discussion, we suggested that the case of Nelson v. Colorado, 137 S. Ct. 1249, 581 U.S., 197 L. Ed. 2d 611 (2017) might be used to argue against the application of Watts for including uncharged and acquitted charges as “relevant conduct” in sentencing.

However, as we pointed out then, the Nelson opinion might not be sufficient:

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….

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. 

SCOTUS Passes the Ball Regarding Acquitted Conduct – For Now

Several petitions to the High Court presented themselves during the October 2022 SCOTUS term which ended in June 2023 seeking to address this issue.  All these petitions were denied.  Read, “US Supreme Court sidesteps ‘acquitted conduct’ cases for now,” written by John Kruzel and published by Reuters on June 30, 2023.

Among them was the case of McClinton v. United States, 143 S. Ct. 2400, 600 U.S. (2023).

1. Defense Position Against Acquitted Conduct

In McClinton, arguments were made not only from appellate defense counsel but from a number of friends of the court, with one amicus curiae brief filed by the National Association of Federal Defenders (NAFD) and Families Against Mandatory Minimums (FAMM) that summaries the defense arguments  against consideration of acquitted conduct in future sentencing (bullet points inserted for easier reading):

  • The petition for certiorari forcefully conveys the constitutional stakes in punishing acquitted conduct. But the consequences of this practice go far beyond derogation of the Fifth Amendment due process right and the Sixth Amendment right to jury trial—the practice distorts every phase of the criminal process.
  • The harmful influence begins at indictment, where the possibility of securing punishment for acquitted conduct encourages the government to bring charges without regard to whether it can obtain a conviction, and continues through plea negotiations, as defendants are pressured to plead guilty because an acquittal might not yield any benefit at sentencing.
  • The practice likewise distorts trial strategies, forcing defendants to tailor their arguments and evidence to two different factfinders under two different standards of proof.
  • And the damage continues long after a case ends, as the practice’s discordance with the common understanding of the jury-trial right weakens public confidence in the federal criminal system.
  • These results—as members of the NAFD (speaking for attorneys) and FAMM (speaking for incarcerated individuals) can sadly attest—compromise the attorney-client relationship: When the public perceives the criminal justice system as unprincipled and unfair, defendants are more likely to resist advice from the attorneys that the justice system has appointed to represent them.
  • Members of the Court have suggested that district judges or the United States Sentencing Commission might remedy or mitigate the harms of acquitted-conduct sentencing. But district judges cannot fix the problem for several reasons.
  • Under current law, sentencing judges must consider acquitted conduct as part of the “starting point” for sentencing. Thus, such conduct will continue to exert a profound pull on the sentences they impose regardless whether they forswear reliance on it.
  • Although judges may, on a case-by-case basis, grant reasoned variances from the guidelines enhanced by acquitted conduct, judges have shown little inclination to do so, and many who have tried have been rebuked with appellate reversals for perceived infidelity to the Sentencing Guidelines’ “relevant conduct” rules.
  • Moreover, the discretion vested in the district court bench means that the best it can offer is a piecemeal courtroom-by-courtroom solution.
  • The Sentencing Commission, too, is unlikely to curb sentencing based on acquitted conduct. Although it repeatedly proposed abolishing the practice in the 1990s, the Commission has rarely mentioned the issue—and has proposed no changes—since this Court’s 1997 decision in United States v. Watts, 519 U.S. 148 (1997), which featured a concurrence opining that 18 U.S.C. § 3661 precluded the Commission from moving in a new direction.
  • Two decades of ensuing silence in the face of withering criticism suggests that, rightly or wrongly, the Commission agrees that its hands are tied. Its inaction makes clear that it cannot be counted on to fix this problem. This Court’s intervention is needed.

2. SCOTUS Waits for USSC Action: “Kicking the Can Down the Road”

Notice how the defense explains how the USSC and its USSG have not prevented this injustice even though there has been recognition of the need for change.  Still, in McClinton there is judicial deference given to the USSC to take action here – even though several Justices suggest that SCOTUS will take action in the future if change does not happen.

Quoting from Justice Sotomayor’s lengthy statement in McClinton

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.

Quoting the statement from Justice Kavanaugh, joined by Justices Gorsuch and Barrett:

As JUSTICE SOTOMAYOR explains, the Court’s denial of certiorari today should not be misinterpreted. The use of acquitted conduct to alter a defendant’s Sentencing Guidelines range raises important questions. But the Sentencing Commission is currently considering the issue. It is appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.

Quoting from the concurring opinion of Justice Alito (emphasis added):

If the Court in some future case takes up the question of the constitutionality of considering acquitted conduct at sentencing, better arguments on both sides of the issue may be presented to us, and nothing that I have written here should be understood as the expression of a firm position on that question.  But because my colleagues have laid out some of the arguments in favor of one side, I thought it appropriate to outline some of the countervailing arguments.

I will surely have some more commentary on this eventful cert denial in later posts (likely over the weekend).  For now I will say I am disappointed, but not all that surprised, that the Justices keep being content to kick this ugly-but-challenging acquitted-conduct can down the road.

The Now-Shelved Proposed USSG Amendment Addressing Acquitted Conduct

This long-standing controversy was one of the considerations when the United States Sentencing Commission (“USSC”) recently announced it was considering amendments to the USSG.

An addition to USSG §1B1.3 was proposed that would provide that “acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.”

As amended, §1B1.3 would define “acquitted conduct” to include any charge for which a defendant was acquitted “by the trier of fact or upon a motion of acquittal.”

1. Defense Bar Response to Proposed USSG Amendment

In response, the Federal Defender Sentencing Guidelines Committee opined:

“The Commission considered eliminating or limiting acquitted conduct sentencing at least four times in the past, dating back over thirty years. Regretfully, it has not yet done so. But this Commission can remedy the injustice of acquitted conduct sentencing now.” FDSGC, page 17.

The National Association of Criminal Defense Lawyers (NACDL) agreed with the position of the FDSGC.  Read, Written Statement of Michael P. Heiskell, President-Elect of the NACDL, before the United States Sentencing Commission Regarding Proposed Amendments to the Federal Sentencing Guidelines Related to Acquitted Conduct on February 24, 2023.  (Eleven pages long, it’s a good read.)

2. USSC Delays Acquitted Conduct Changes in the USSG

So, what happened?  Formal amendments to the USSG will be effective in November 2023 (reader-friendly version provided by the USSC here).  However, the change that would limit the consideration of “acquitted conduct” in federal sentencing has been removed.

After proposing the acquitted conduct sentencing amendment in January 2023, the USSC withdrew its proposal for further study on April 5, 2023.

From the USSC:

In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023.

A headscratcher:  how to jive this April 2023 timing with the McClinton opinion and the statements made by Justices Sotomayor, et al. in June 2023.

As of today’s date, the best news we have is from the USSC in August 2023 that explains the Final Priorities for Amendment Cycle 2023-2024 which includes the following:

(7) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

Defense Challenges Remain in Fighting Against Unfairness in Using Acquitted Conduct in Sentencing

These November 2023 USSG Amendments are the first we have seen in five years.  The USSC has not had a quorum of Commissioners since 2018.  It is hoped that their “back in business” approach will finally address the critical need for removing the consideration of acquitted conduct in sentencing.

Until then, defense lawyers must deal with the reality that defense after a conviction must include defense strategies against the use of acquitted conduct to enhance a sentence under the current United States Sentencing Guidelines.

It must still be argued that the Fifth and Sixth Amendments of the United States Constitution block the use of acquitted conduct.  This is fundamental to our system of criminal justice in all jurisdictions (e.g., state, local, tribal).

For more, read:


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.


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