Thursday, June 6, 2024

Sentencing Guidelines Amendment Eliminates Acquitted Conduct from Sentencing Calculations (6/6/24; 6/11/24)

Effective 11/1/24, the U.S. Sentencing Commission has eliminated acquitted conduct as relevant conduct under §1B1.3 to enhance sentencing calculations. See Sentencing Commission web page titled "2024 AMENDMENTS IN BRIEF: Acquitted Conduct," here

Of course, because the Guidelines were advisory, a sentencing judge did not have to consider acquitted conduct as relevant conduct in imposing sentence, although the judge might feel compelled to include acquitted conduct in calculating the advisory Guidelines sentence. Under the prior rules, the acquitted conduct could be considered only if the judge found the acquitted conduct by a preponderance of the evidence.

The announcement caveats that “This amendment does not comment on the use of uncharged, dismissed, or other relevant conduct as defined in §1B1.3.” What does that mean? Well, for example, it means that a plea bargain dismissing counts permits the sentencing judge to consider the dismissed counts as relevant conduct, provided that by sentencing the judge is convinced by a preponderance of the evidence that the defendant committed the relevant conduct crimes. Same for uncharged conduct. (PSRs often note, particularly for dismissed counts, that the sentencing calculations are the same as if the dismissed counts were counts of conviction.)

There are other amendments that are potentially applicable in tax crimes or FBAR crimes cases. Readers might want to review the Sentencing Commissioner web page titled “Amendments in Brief,” here.

Added 6/11/24 10:00 am:

I offer more on the amendment to prohibit conduct behind “not guilty” verdicts from the Guidelines sentencing calculations. I picked up this blog on the Sentencing Commissions decision: Ellen Podgor, Sentencing Commission Change - Acquitted Conduct - "Not Guilty Means Not Guilty" (White Collar Crime Blog 5/24/24), here. I just wanted to clarify why the Guidelines ever included acquitted conduct as relevant conduct and what the practical effect of the elimination of acquitted conduct in the formal Guidelines calculations may be.

A “not guilty” verdict means only that the jury (or judge in bench trials) found only that the prosecution did not prove the defendant guilty beyond a reasonable doubt. The “not guilty” verdict does not mean either (i) that the defendant is not guilty (the jury may just have gotten it wrong), or (ii) that jury did not believe the defendant was innocent of the crime if it had applied a preponderance of the evidence standard. Sentencing factors have historically (even before the Guidelines) permitted sentencing judges, in their discretion, to consider a range of what would be called relevant conduct, including acquitted conduct. Of course, in order to consider such conduct, the judge would have to believe the defendant committed the conduct and would have to do so by a preponderance of the evidence.

With its elimination from the formal Guidelines calculations, does that mean that acquitted conduct will not affect the judges sentencings? Keep in mind that the Guidelines are advisory only. United States v. Booker, 543 U.S. 200 (2005). The judge can and should consider the standards set forth in 18 U.S.C. § 3553(a), here. Among those standards are the “characteristics of the defendant.” So, does the elimination of acquitted conduct from the formal Guidelines calculation mean that the judge should not consider acquitted conduct under § 3553(a)? Consider this nontax example, assume that is within the U.S. court’s jurisdiction to consider rape violations at a federal military base. The defendant is charged with 2 counts of rape. The prosecution produces a jury guilty verdict on Count 1 but not guilty on Count 2. The defendant has no criminal history and otherwise qualifies for all downward adjustments that are appropriate. The judge believes either (i) the jury was just wrong on the not guilty verdict in Count 2 or (ii) the jury was right on Count 2 but only because the prosecution’s evidence was not proof beyond a reasonable doubt (in other words, the judge believes by a preponderance of the evidence that the Count 2 conduct charged actually occurred). There is no question that the judge cannot include the acquitted Count conduct in the Guidelines calculations. And, I suspect, the judge cannot even say that the sentencing imposed is affected by the acquitted conduct. Will the judge, nevertheless, not consider the acquitted conduct in imposing the sentence?

I think one can create a number of similar hypotheticals where a judge would feel that justice could not be done in particular cases without considering the acquitted conduct in some way that affects the sentence imposed.

Finally, two experts in sentencing and serving time in the federal system, offer an excellent article: Mark Allenbaugh & Alan Ellis, End Of Acquitted Conduct Sentencing Can Spark More Reform ( 5/6/24), here, Key points from their article are:
  • "[T]he amendment does not preclude judges from considering acquitted conduct for purposes of varying from the advisory guidelines." Sentencing courts "may still consider the acquitted conduct for purposes of imposing a sentence above the calculated range."
  • Since the actual use of relevant conduct to increase the Guidelines calculations is rare, the amendment "could only possibly make a difference in exceedingly rare cases."
  • "[A]s the amendment recognizes, Title 18 of the U.S. Code, Section 3661, provides that 'no 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.'"
  • "Congress currently is considering bipartisan legislation that would modify Section 3661 to add the following after the words 'appropriate sentence': "except that a court of the United States shall not consider, except for purposes of mitigating a sentence, acquitted conduct under this section preclude."  "Presumably, should such legislation pass, then a judge, in those exceedingly rare cases where it would even be at issue, could not consider acquitted conduct for purposes of imposing a sentence above the calculated range — only below."
  • Similar compelling arguments can be and are made to support exclusion of conduct for uncharged and dismissed counts.

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