AMENDMENT 826
Section 1B1.3 is amended—
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.”.
The Commentary to §1B1.3 captioned “Application Notes” is amended by inserting at the end the following new Note 10:
“10. Acquitted Conduct.—Subsection (c) provides that relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct establishes, in whole or in part, the instant offense of conviction. 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.”.
The Commentary to §6A1.3 is amended—
by striking “see also United States v. Watts, 519 U.S. 148, 154 (1997) (holding that lower evidentiary standard at sentencing permits sentencing court’s consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399–401 (1995) (noting that sentencing courts have traditionally considered wide range of information without the procedural protections of a criminal trial, including information concerning criminal conduct that may be the subject of a subsequent prosecution);” and inserting “Witte v. United States, 515 U.S. 389, 397–401 (1995) (noting that sentencing courts have traditionally considered a wide range of information without the procedural protections of a criminal trial, including information concerning uncharged criminal conduct, in sentencing a defendant within the range authorized by statute);”;
by striking “Watts, 519 U.S. at 157” and inserting “Witte, 515 U.S. at 399–401”;
and by inserting at the end of the paragraph that begins “The Commission believes that use of a preponderance of the evidence standard” the following: “Acquitted conduct, however, is not relevant conduct for purposes of determining the guideline range. See §1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. § 3661.”.
Reason for Amendment: This amendment revises §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)) to exclude acquitted conduct from the scope of relevant conduct used in calculating a sentence range under the federal guidelines. Acquitted conduct is unique, and this amendment does not comment on the use of uncharged, dismissed, or other relevant conduct as defined in §1B1.3 for purposes of calculating the guideline range.
The use of acquitted conduct to increase a defendant’s sentence has been a persistent concern for many within the criminal justice system and the subject of robust debate over the past several years. A number of jurists, including current and past Supreme Court Justices, have urged reconsideration of acquitted-conduct sentencing. See, e.g., McClinton v. United States, 143 S. Ct. 2400, 2401 & n.2 (2023) (Sotomayor, J., Statement respecting the denial of certiorari) (collecting cases and statements opposing acquitted-conduct sentencing). In denying certiorari last year in McClinton, multiple Justices suggested that it would be appropriate for the Commission to resolve the question of how acquitted conduct is considered under the guidelines. See id. at 2402–03; id. at 2403 (Kavanaugh, J., joined by Gorsuch, J. and Barrett, J., Statement respecting the denial of certiorari), but see id. (Alito, J., concurring in the denial of certiorari). Many states have prohibited consideration of acquitted conduct. See id. at 2401 n.2 (collecting cases). And, currently, Congress is considering bills to prohibit its consideration at sentencing, with bipartisan support. See Prohibiting Punishment of Acquitted Conduct Act of 2023, S. 2788, 118th Cong. (1st Sess. 2023); Prohibiting Punishment of Acquitted Conduct Act of 2023, H.R. 5430, 118th Cong. (1st Sess. 2023).
First, the amendment revises §1B1.3 by adding new subsection (c), which provides that “[r]elevant 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.” This rule seeks to promote respect for the law, which is a statutory obligation of the Commission. See 28 U.S.C § 994(a)(2); id. § 991(b)(1)(A) & (B); 18 U.S.C. § 3553(a)(2).
This amendment seeks to promote respect for the law by addressing some of the concerns that numerous commenters have raised about acquitted-conduct sentencing, including those involving the “perceived fairness” of the criminal justice system. McClinton, 143 S. Ct. at 2401 (Sotomayor, J., Statement respecting the denial of certiorari). Some commenters were concerned that consideration of acquitted conduct to increase the guideline range undermines the historical role of the jury and diminishes “the public’s perception that justice is being done, a concern that is vital to the legitimacy of the criminal justice system.” McClinton, 143 S. Ct. at 2402–03 (Sotomayor, J., Statement respecting the denial of certiorari); see United States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008) (expressing concern that “using acquitted conduct to increase a defendant’s sentence undermines respect for the law and the jury system”). They argue that consideration of acquitted conduct at sentencing contributes to the erosion of the jury-trial right and enlarges the already formidable power of the government, reasoning that defendants who choose to put the government to its proof “face all the risks of conviction, with no practical upside to acquittal unless they . . . are absolved of all charges.” United States v. Bell, 808 F.3d 926, 932 (D.C. Cir. 2015) (Millett, J., concurring in the denial of reh’g en banc). For these reasons, “acquittals have long been ‘accorded special weight,’ distinguishing them from conduct that was never charged and passed upon by a jury,” McClinton, 143 S. Ct. at 2402 (Sotomayor, J., Statement respecting the denial of certiorari (quoting United States v. DiFrancesco, 449 U.S. 117, 129 (1980))) and viewed as “inviolate,” McElrath v. Georgia, 601 U.S. 87, 94 (2024).
Second, the amendment adds new Application Note 10 to §1B1.3(c), which instructs that in “cases in which certain conduct underlies both an acquitted charge and the instant offense of conviction . . . , 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.” The amendment thus clarifies that while “acquitted conduct” cannot be considered in determining the guideline range, any conduct that establishes—in whole or in part—the instant offense of conviction is properly considered, even as relevant conduct and even if that same conduct also underlies a charge of which the defendant has been acquitted. During the amendment cycle, commenters raised questions about how a court would be able to parse out acquitted conduct in a variety of specific scenarios, including those involving “linked or related charges” or “overlapping conduct” (e.g., conspiracy counts in conjunction with substantive counts or obstruction of justice counts in conjunction with substantive civil rights counts). Commission data demonstrate that cases involving acquitted conduct will be rare. In fiscal year 2022, of 62,529 sentenced individuals, 1,613 were convicted and sentenced after a trial (2.5% of all sentenced individuals), and of those, only 286 (0.4% of all sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser included offense.
To ensure that courts may continue to appropriately sentence defendants for conduct that establishes counts of conviction, rather than define the specific boundaries of “acquitted conduct” and “convicted conduct” in such cases, the Commission determined that the court that presided over the proceeding will be best positioned to determine which conduct can properly be considered as part of relevant conduct based on the individual facts in those cases.
The amendment limits the scope of “acquitted conduct” to only those charges of which the defendant has been acquitted in federal court. This limitation reflects the principles of the dual-sovereignty doctrine and responds to concerns about administrability. The chief concern regarding administrability raised by commenters throughout the amendment cycle was whether courts would be able to parse acquitted conduct from convicted conduct in cases in which some conduct relates to both the acquitted and convicted counts. The Commission appreciates that federal courts may have greater difficulty making this determination if it involves proceedings that occurred in another jurisdiction and at different times.
Third, and finally, the amendment makes corresponding changes to §6A1.3 (Resolution of Disputed Factors (Policy Statement)), restating the principle provided in §1B1.3(c) and further clarifying that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. § 3661.”
Effective Date: The effective date of this amendment is November 1, 2024.