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U.S. Sentencing Commission Votes Unanimously to Restrict Use of Acquitted Conduct at Sentencing

by Sam Rutherford


On April 17, 2024, the U.S. Sentencing Commission voted unanimously to limit consideration of conduct for which a person was acquitted in federal court from being used in calculating the sentence range under the federal guidelines for a related conviction.

            The U.S. Sentencing Commission Guidelines Manual (“USSG”) does not specifically state whether a federal district court may consider conduct for which a defendant has been acquitted when sentencing on related offenses for which he or she has been convicted. However, in United States v. Watts, 519 U.S. 148 (1997), the U.S. Supreme Court ruled that the USSG 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.” This practice is known as acquitted-conduct sentencing.

            The Court determined that acquitted-conduct sentencing is permitted under several sections of the USSG. Specifically, Section 1B1.3 instructs district courts to consider “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant” that “occurred during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.” USSG § 1B1.3(a)(1) (2023). Section 6A1.3 similarly states that district courts “may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.” USSG § 6A1.3(a) (2023).

            Acquitted-conduct sentencing has been controversial for many years. The federal prosecution of Dayonta McClinton is a prime example. The Government in that case charged McClinton, then only 17 years old, with shooting and killing a friend during a dispute over the proceeds of a pharmacy robbery. A jury, however, acquitted him of the murder but convicted him of robbing the pharmacy. The district court at sentencing nonetheless considered facts underlying the killing to increase McClinton’s guideline range and imposed a sentence of 19 years in prison. Absent such consideration, McClinton’s sentencing range would have been approximately five to six years.

McClinton’s case reached the Supreme Court, and his petition for writ of certiorari was denied. However, the denial was not because the Justices did not believe his case raised serious issues. In fact, in a statement accompanying the denial of certiorari, Justice Sonia Sotomayor wrote that acquitted-conduct sentencing “raises important questions that go to the fairness and perceived fairness of the criminal justice system.” Justices Brett Kavanaugh, Neil Gorsuch, and Amy Coney Barrett also said the practice “raises important questions” but noted the Court was declining review because the Sentencing Commission was in the process of reconsidering the issue. McClinton v. United States, 143 S. Ct. 2400 (2023).

            Following completion of its review, the Sentencing Commission issued preliminary amendments to the USSG in an effort to curb the practice of acquitted-conduct sentencing. The Commission added a new subsection to Section 1B1.3, stating 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.” USSG § 1B1.3(c) (2024) (proposed amendment).

This amendment will become effective on November 1, 2024, unless Congress intervenes to change or eliminate the proposal. The amendment is not retroactive, although a majority of the Sentencing Commission voted to give notice of the possibility of retroactivity in the future and to prepare a retroactivity impact analysis. U.S. Sent’g Comm’n, Amendments to the Sentencing Guidelines (Preliminary) (April 17, 2024).

Sources: U.S. Sentencing Commission,, 

Writer’s note: It is important to understand that this change does not completely prohibit consideration of acquitted conduct at sentencing. The commentary accompanying the amendment to Section 1B1.3 notes that “[t]here 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.” USSG § 1B1.3, comment, n.10 (2024) (proposed commentary).

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