The U.S. Sentencing Commission Seeks to Limit the Use of Acquitted Conduct in Federal Sentencing

The U.S. Sentencing Commission Seeks to Limit the Use of Acquitted Conduct in Federal Sentencing

Legal Sidebari

The U.S. Sentencing Commission Seeks to
Limit the Use of Acquitted Conduct in Federal
Sentencing
Updated July 5, 2024
Consider a defendant who is a part of a group that robs a pharmacy. In a dispute about how to divide up
the proceeds, one of the robbers kills another in the group. The defendant is charged both with the robbery
and the killing of his confederate. The jury convicts the defendant only of the robbery and acquits the
defendant of murder. That is, the jury necessarily finds that the government proved beyond a reasonable
doubt that the defendant robbed the pharmacy, but the government failed to prove beyond a reasonable
doubt that the defendant committed murder. The judge sentences the defendant for the robbery, which
carries a sentence of five to six years in prison, and also finds by a preponderance of the evidence that the
defendant is responsible for the confederate’s death, enhancing the defendant’s sentence to 19 years in
prison.
These are the facts of McClinton v. United States. In 2022, the Supreme Court was asked to hear this case
and resolve whether enhancing a sentence on the basis of “acquitted conduct”—generally the conduct
underlying an alleged criminal offense that the jury has acquitted the defendant of committing—is
consistent with the Due Process Clause of the Fifth Amendment and the right to a jury trial under the
Sixth Amendment. In 2023, the Supreme Court denied review, however, with several Justices explaining
that they were waiting for the U.S. Sentencing Commission to act. The Commission studied the use of
acquitted conduct for purposes of the U.S. Sentencing Guidelines—the starting point in identifying an
appropriate sentence for a federal defendant—and has proposed an amendment to the Guidelines that
would limit the consideration of acquitted conduct for purposes of determining the sentencing range under
the Guidelines.
This Sidebar discusses acquitted conduct in the context of the Guidelines. The Sidebar provides an
overview of the Commission’s preliminary and current approach to acquitted conduct and identifies some
judicial commentary regarding the use of acquitted conduct in sentencing decisions. The Sidebar then
turns to the Commission’s proposed amendment to the Guidelines on acquitted conduct. The Sidebar
concludes with considerations for Congress, including a discussion of the opportunity for Congress to
review and respond to the proposed amendment by November 1, 2024.
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CRS Legal Sidebar

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Acquitted Conduct Under the Current Sentencing Guidelines
Charged Offense and Real Offense Sentencing
Congress enacts federal criminal statutes and can also set the penalties for violations of these statutes. For
example, an individual who possesses certain controlled substances with intent to manufacture, distribute,
or dispense them may be subject to a statutorily prescribed mandatory minimum sentence of 10 years and
a maximum sentence of life in prison. Under this example, a federal judge historically could have
imposed a sentence anywhere between the 10-year baseline and life in prison. In 1984, however,
Congress established the U.S. Sentencing Commission to develop Guidelines that would guide judges’
discretion within these statutory limits and thereby reduce unwarranted sentencing disparities.
The inaugural Commission acknowledged that “one of the most important questions” it faced was
whether to base the Sentencing Guidelines on a “charged offense” system (in which the Guidelines would
correspond with the elements of the offense of conviction) or a “real offense” system (in which the
Guidelines would take into account how the individual committed the offense of conviction). For
example, two defendants might independently rob banks in violation of the same criminal statute but may
commit the crimes differently: say one defendant brandishes a firearm in the commission of the offense,
takes more money, and strikes a teller upon leaving. If both were sentenced in a charged offense system,
the two defendants would receive the same known sentence based on the offense of conviction, promoting
uniformity and certainty. If they were sentenced in a real offense system, by contrast, the defendant who
brandished a firearm, stole more money, and hit the teller might receive a higher sentence. In this sense, a
real offense system helps ensure that a sentence reflects the differences in how the crimes were committed
and is proportional to the harms inflicted.
The inaugural Sentencing Commission initially attempted to develop Guidelines predicated on a “real
offense” approach. The Commission admitted, however, that identifying, weighing, and integrating every
harm would be too complex to be workable. The Commission instead ultimately adopted a “modified real
offense” system, a compromise between the two models. In particular, the Guidelines set a base offense
level that is tied to the offense of conviction (reflecting a charged offense system), which may be
modified in light of aggravating and mitigating circumstances called specific offense characteristics and
adjustments (reflecting a real offense system).
Relevant Conduct
The Guidelines provide that the base offense level, specific offense characteristics, and adjustments “shall
be determined” on the basis of “relevant conduct.” The Guidelines define “relevant conduct” as those acts
and omissions “that were part of the same course of conduct or common scheme or plan as the offense of
conviction.” An application note to the Guidelines adds that “[c]onduct that is not formally charged or is
not an element of the offense of conviction may enter into the determination of the applicable guideline
sentencing range.” The Supreme Court has read the Commission’s description of relevant conduct to
include consideration of acquitted conduct, that is, conduct underlying a charged criminal offense of
which the defendant was acquitted.
The Commission’s inclusion of “relevant conduct,” extending to acquitted conduct, is supported by
various sources. In 1970, Congress enacted a statute, 18 U.S.C. § 3661, which provides that “[n]o
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.” Relatedly, the federal parole guidelines in 1987 included
consideration of “the conduct in which the defendant actually engaged.” The Commission’s approach also
is consistent with federal caselaw. Specific to acquitted conduct, in the 1947 case of Williams v. New York,
the Supreme Court indicated that judges at sentencing should consider the “fullest information possible,”

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“not confined to the narrow question of guilt.” In Nichols v. United States, decided in 1994, the Court
observed that sentencing judges have “considered a defendant’s past criminal behavior, even if no
conviction resulted from that behavior.” Soon after in United States v. Watts, the Court made clear that a
sentencing judge’s consideration of both acquitted conduct and uncharged conduct does not offend the
Double Jeopardy Clause of the Fifth Amendment. A system permitting consideration of “relevant
conduct” may also align with the traditional purposes of criminal punishment that Congress has codified
in 18 U.S.C. § 3553(a). For example, a sentence that takes into account acquitted conduct may better
reflect a defendant’s culpability and thereby advance the retributive purpose of punishment.
The Supreme Court has placed some limits on judge-found facts at sentencing. For example, in a pair of
cases, the Court in Apprendi v. New Jersey and Alleyne v. United States held that, other than the fact of a
prior conviction, any fact that increases a statutory maximum or mandatory minimum penalty,
respectively, constitutes an element of a crime that must be admitted by the defendant or found by a jury
beyond a reasonable doubt. The Guidelines were created to be mandatory, but in 2005, the Supreme Court
held in Booker v. United States that the mandatory Guidelines system violated the Sixth Amendment right
to a jury trial because the Guidelines permitted a judge to enhance a sentence based on a judge’s finding
of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. The
Court therefore construed the Guidelines as advisory to avoid the Sixth Amendment issue. The Court later
clarified that, in a post-Booker advisory regime, federal judges are to follow a three-step process in
imposing an appropriate sentence: (1) to calculate the Guidelines range, (2) to consider any reasons to
depart from the Guidelines in light of enumerated reasons in the Guidelines, and (3) to consider any
reasons to vary from the sentence otherwise indicated by the first two steps in light of the sentencing
principles codified in 18 U.S.C. § 3553(a).
Preponderance of the Evidence Standard
The Guidelines specify that a sentencing judge must find relevant conduct by a preponderance of the
evidence (i.e., proof that a fact is more likely than not to have occurred), a lower quantum of proof than
the standard of “beyond a reasonable doubt” required for a criminal conviction. The commentary to the
Guidelines explains that “a preponderance of the evidence standard is appropriate to meet due process
requirements . . . regarding application of the guidelines to the facts of a case.” The standard of proof also
finds support in caselaw. In the 1970 case of In re Winship, the Supreme Court established that each
element of a criminal offense must be proven to a jury beyond a reasonable doubt to secure a conviction.
In McMillan v. Pennsylvania, the Supreme Court in 1986 suggested that the reasonable doubt standard
applies only to the guilt phase and not to the subsequent sentencing phase of the criminal process. Over a
decade later in Watts, the Court, citing Nichols and McMillan, emphasized that “application of the
preponderance standard at sentencing generally satisfies due process.” In addition, “every federal court of
appeals with criminal jurisdiction has recognized sentencing courts’ authority to rely on conduct that the
judge finds by a preponderance of the evidence but that the jury does not find beyond a reasonable
doubt,” according to the Solicitor General.
Judicial Commentary Regarding the Use of Acquitted Conduct in
Sentencing
Several former and current Supreme Court Justices have expressed concern that the use of acquitted
conduct at sentencing may be unconstitutional. Then-Justices John Paul Stevens and Anthony Kennedy
dissented in Watts, arguing that acquitted conduct undermines the jury’s verdict of acquittal. Then-Justice
Antonin Scalia (joined by then-Justice Ruth Bader Ginsburg and Justice Clarence Thomas) dissented from
the denial of certiorari in another case, contending that “any fact necessary to prevent a sentence from
being substantively unreasonable . . . is an element that must be either admitted by the defendant or found

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by the jury.” Likewise, Justice Neil Gorsuch wrote while serving on the Tenth Circuit that it is “far from
certain” whether the Constitution allows a court to increase a defendant’s sentence “based on facts the
judge finds without the aid of a jury or the defendant’s consent,” citing then-Justice Scalia’s dissent.
Similarly, Justice Brett Kavanaugh, while sitting on the D.C. Circuit, commented that “[a]llowing judges
to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose
seems a dubious infringement of the rights to due process and to a jury trial.” He also encouraged
Congress and the Court to find a “fix” for the acquitted conduct issue, which he said raises concerns “both
as a matter of appearance and as a matter of fairness.” Before the Sentencing Commission, then-Judge
Kavanaugh testified that “acquitted conduct should be barred from the guidelines calculation.”
In McClinton v. United States, a recent case challenging the use of acquitted conduct that the Supreme
Court declined to review, the petitioner pointed to judicial criticisms of acquitted conduct and also argued
that the use of acquitted conduct at sentencing incentivizes prosecutors to bring additional charges to both
increase their leverage for plea bargaining purposes and increase the chances of an enhanced sentence
based on acquitted charges. Justice Sonia Sotomayor issued a separate statement respecting the denial of
certiorari in the case, asserting that “the use of acquitted conduct to increase a defendant’s Sentencing
Guidelines range and sentence raises important questions that go to the fairness and perceived fairness of
the criminal justice system.” The use of acquitted conduct, Justice Sotomayor argued, minimizes the role
of the jury as safeguard of liberty and check on the government’s authority to punish while enabling the
government to receive a “second bite of the apple” with a lower standard of proof. Justice Kavanaugh,
joined by Justices Gorsuch and Amy Coney Barrett, also offered a statement respecting the denial of
certiorari, indicating that “[t]he use of acquitted conduct to alter a defendant’s Sentencing Guidelines
range raises important questions.” These Justices signaled they would wait for potential action from the
Sentencing Commission on acquitted conduct before deciding whether to vote to address the issue.
Justice Samuel Alito concurred in the denial of certiorari in McClinton, suggesting that the constitutional
right to a jury trial poses no bar to the use of acquitted conduct because, as a historical matter, founding-
era federal statutes permitted judges to take acquitted conduct into account, provided that the sentence
imposed fell within a prescribed range. In addition, Justice Alito posited that, down the line, the Court
could only preclude the use of acquitted conduct by overruling Watts and in doing so weighing the
traditional grounds for overturning precedent, including whether it is unworkable.
Proposed Amendment to Guidelines on Acquitted Conduct
The Withdrawn 2023 Proposed Amendment
In early 2023, the Sentencing Commission proposed a Guidelines amendment to address acquitted
conduct. The 2023 proposed amendment would have provided that acquitted conduct shall not be
considered relevant conduct for purposes of determining a sentencing range under the Guidelines unless,
to establish the offense of conviction, the conduct was admitted by the defendant during a guilty plea
colloquy or was found by the trier of fact beyond a reasonable doubt. The Commission subsequently
withdrew the proposal. Commission Chair Carlton W. Reeves explained that further study was needed
given that the proposed amendment had drawn extensive public comment on both sides of the issue and
that the matter is “of foundational and fundamental importance to the operation of the entire federal
justice system.”
The 2024 Proposed Amendment
In 2024, the Commission proposed an amendment to the Guidelines that would limit the use of acquitted
conduct for purposes of calculating the Guidelines range. In addressing the need for the amendment, the
Commission cited “concerns” about acquitted-conduct sentencing, including statements by Justices
Sotomayor and Kavanaugh. In substance, the proposed amendment would establish that relevant conduct

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under the Guidelines does not include acquitted conduct, defined as “conduct for which the defendant was
criminally charged and acquitted in federal court.”
The proposed amendment contains an exception: conduct that “establishes, in whole or in part, the instant
offense of conviction”—that is, conduct that “underlies” and overlaps with both an acquitted charge and
the instant offense of conviction—would constitute relevant conduct and could be considered under the
Guidelines. By its own terms, the proposal indicates that the amendment would only “exclude acquitted
conduct from the scope of relevant conduct used in calculating a sentence range”—in other words, the
information that a federal judge may consider at steps one and two of the post-Booker sentencing
framework. The amendment thus does not apply to step three, which involves the consideration of
statutory factors listed in 18 U.S.C. § 3553(a). The amendment also expressly provides that it does not
“abrogate[] a court’s authority under 18 U.S.C. § 3661,” further signaling that a federal court remains free
by virtue of statute to consider acquitted conduct at step three of the sentencing process.
Congressional Considerations
On April 30, 2024, the Commission submitted the proposed amendment to Congress, triggering a 180-day
congressional review period. Congress may allow the review period to pass, in which case the amendment
becomes effective on November 1, 2024; or Congress can “modify or disapprove” the amendment. In
1995, for example, a bill passed in the Senate and the House, and signed into law by then President Bill
Clinton, disapproved two proposed amendments. The 1995 act may serve as precedent for how Congress
could reject a proposed acquitted conduct amendment.
Second, Congress may pass legislation codifying in federal law whether and to what extent acquitted
conduct may be used in federal sentencing determinations. Amendments to Sections 3553(a) and 3661,
which permit sentencing judges to continue considering acquitted conduct beyond the Guidelines context,
may only be accomplished by Congress. In current and past sessions, Members have introduced bills
concerning acquitted conduct (see, e.g., H.R. 5430 [118th Congress], S. 2788 [118th Congress], H.R. 1621
[117th Congress], S. 601 [117th Congress], and S. 2566 [116th Congress]).
Rosemary Gardey, a former CRS Legislative Attorney, was a coauthor of the original Sidebar.

Author Information

Dave S. Sidhu

Legislative Attorney

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