When facing federal criminal charges, you might assume that being acquitted of a charge means it's left behind entirely, and indeed, that's how it should be.
However, until recently, federal judges could consider actions for which a defendant had already been acquitted when determining their sentence for other convictions. This controversial practice, known as acquitted conduct sentencing, has faced widespread criticism, and major reforms have now been enacted to curb its use.
Simply put, acquitted conduct accounts for offenses for which a defendant was found not guilty at trial. For example, suppose an individual is on trial for a Hobbs Act robbery, in which the government alleges that the person engaged in a robbery that involved interstate commerce.
In the course of that robbery, the government also alleges that the individual possessed a firearm. After a trial, a jury found the individual not guilty of firearm possession but guilty of the robbery itself.
Prior to these reforms, a sentencing judge could consider the firearm possession during their sentencing determination for the robbery, despite the fact that the individual was actually acquitted of this conduct.
This would greatly enhance that person's sentence. Now, the reforms curb that injustice by prohibiting judges from considering this acquitted conduct during sentencing proceedings, bringing a sense of relief and hope to defendants.
Federal Sentencing Guidelines
Since the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines have been rendered advisory.
This means leaving sentences to the district court's discretion, guided by the Guidelines and the other factors contained in the laws governing sentence imposition, as well as any applicable statutory minimum and maximum.
18 U.S.C. § 3553(a) requires the federal court to impose a sentence that is "sufficient, but not greater than necessary." The court must "undertake an individualized assessment" to determine the appropriate sentence based on the facts presented (United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009).
In making this determination, the Court must conduct its independent review of the 3553(a) factors, aided by the arguments of the prosecution and defense (United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). Specifically, the court shall consider the following factors:
- The nature and circumstances of the offense.
- The history and characteristics of the defendant.
- The need for the sentence is imposed based on the seriousness of the offense, to promote respect for the law, and to provide just punishment.
- To afford adequate deterrence to criminal conduct.
- To protect the public from further crimes by the defendant.
- To provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
Acquitted Conduct Sentencing Explained
Acquitted conduct sentencing refers to the practice in which a judge takes into account behavior associated with charges a defendant was acquitted of to determine their sentence for a different conviction.
For example, imagine a person who is charged with multiple crimes but is only found guilty of one. Despite being acquitted of the other charges, the judge might still consider actions tied to those acquittals as part of the sentencing process.
This approach was particularly troubling because it seemed to run counter to the principle that someone is innocent of a charge unless proven guilty beyond a reasonable doubt. For defendants, it created a sense of injustice, as behavior deemed insufficient by the court to warrant a conviction could still carry serious consequences.
Simply stated, acquitted conduct sentencing, also known as acquitted conduct, refers to the practice of a sentencing judge considering conduct for which a defendant was found not guilty during trial when determining the sentence for a conviction. The new reforms limit this practice by prohibiting judges from considering acquitted conduct in sentencing.
Acquitted Conduct Quick Facts
- Acquitted conduct is conduct for which a defendant was found not guilty after a trial, even if they were convicted of other charges.
- Before reforms, a judge could consider acquitted conduct when determining a sentence, even if a jury found the defendant not guilty.
- The use of acquitted conduct raised concerns because it could lead to a sentence that was harsher than what was warranted by the conviction.
- The United States Sentencing Commission (USSC), a bipartisan independent agency in the judicial branch of the federal government, has implemented changes to the federal sentencing guidelines to prohibit judges from considering acquitted conduct in sentencing.
- The reforms demonstrate the Commission's commitment to ensuring fairness and justice in the federal sentencing process.
- Amendment 826, which prohibits the use of acquitted conduct, became effective on November 1, 2024.
- The USSC received many comments on the proposal over the unfairness of sentencing based on acquitted conduct.
Why Acquitted Conduct Sentencing?
Federal sentencing guidelines and statutes give judges some discretion in determining sentences. Under prior rules, judges could consider the "relevant conduct" of a defendant when calculating sentencing ranges.
This umbrella of "relevant conduct" included actions connected to acquitted charges, provided the judge believed there was sufficient evidence to show the defendant likely committed those actions. Critically, the standard of proof here was lower than in a criminal conviction. Judges needed only to find that the conduct was proven by a "preponderance of the evidence" (more likely than not) instead of "beyond a reasonable doubt."
While proponents of acquitted conduct sentencing argued it allowed the court to consider the full scope of a defendant's behavior, critics noted its potential to undermine the jury system, erode public trust in the courts, and impose unduly harsh penalties on defendants.
For example, if a defendant is convicted of one armed robbery but acquitted of two other armed robberies, the judge could not consider the acquitted conduct when determining the sentence for the conviction. This means that the defendant could still face a harsher sentence for the one conviction, despite being found not guilty of the other charges.
Acquitted Conduct Sentencing Now Prohibited
In April 2024, the United States Sentencing Commission (USSC) unanimously approved a significant reform package, including a limit on the use of acquitted conduct in sentencing. These reforms went into effect on November 1, 2024, marking a pivotal step in criminal justice policy.
One of the primary amendments to the federal sentencing guidelines prohibits judges from considering acquitted conduct when calculating a defendant's sentence range.
The reform acknowledges the principle that "not guilty means not guilty" and reinforces the importance of respecting jury verdicts. This shift is expected to increase transparency, fairness, and public confidence in the criminal justice system, ensuring that justice is served.
What if a Judge Violates This Reform?
Although these amendments are now enshrined in federal sentencing guidelines, mistakes or intentional violations can still occur. For example, a judge might improperly factor in acquitted conduct during sentencing, whether due to a misunderstanding of the updated rules or a conscious disregard for them. This could lead to an unfairly harsh sentence.
If you believe a judge has violated these guidelines, it's critical to take immediate action. Federal criminal cases are already complex, but challenging a sentencing error requires navigating even stricter rules and timelines. That said, if you can demonstrate that a judge has implemented acquitted conduct sentencing against you, you may be able to get an appeals court to vacate the sentence and mandate fairer resentencing.
You want to hire an experienced federal criminal defense attorney for this process to maximize your chances of a successful challenge. Below are some ways our skilled defense lawyers can help you:
- Reviewing Your Case: A skilled attorney will carefully analyze the record of your case and sentencing proceedings to identify whether acquitted conduct influenced your penalty. They can pinpoint subtle or nuanced violations of the new guidelines.
- Filing Appeals or Sentencing Challenges: If the acquitted conduct was improperly considered, your lawyer can file an appeal or seek relief based on the updated federal sentencing rules. This process often involves presenting a compelling argument to higher courts and advocating for a reduced or corrected sentence.
- Advocating for Your Rights: Beyond addressing sentencing errors, a defense attorney ensures your rights are upheld throughout the entire legal process. They'll fight to minimize penalties and pursue the best possible outcome for your circumstances.
- Providing Guidance: Federal sentencing reforms can be dense and confusing. Your attorney can help you understand how the guidelines apply to your case and what options are available to address potential violations.
If you have already been sentenced and believe your sentencing was based on acquitted conduct, contact our federal criminal appeals attorney to move forward with a potential reduction motion.
Suppose you are still facing a federal prosecution. In that case, you must have a federal defense attorney by your side who is well-versed in the sentencing guidelines and any new legislation to set you up for the best possible result at your federal sentencing. For more information, contact our federal criminal defense law firm, Eisner Gorin LLP, located in Los Angeles, CA.
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