Diddy Sentencing Tests Acquitted Conduct Guidelines Amendment

The Bottom Line

• The high-profile trial of Sean “Diddy” Combs offered white collar litigators the first glimpse of how a recent amendment to the US Sentencing Guidelines will affect their practice.
• The amendment directed judges to exclude acquitted conduct from sentencing guidelines, but the directive doesn’t apply in all situations.
• Without a clear line drawn by the commission, litigators must wait for Congress to weigh in and clarify the rule.

Following his acquittal on the most serious charges and conviction on lesser charges, the highly anticipated sentencing of Sean “Diddy” Combs is among the first high-profile tests of the US Sentencing Commission’s amendment to the US Sentencing Guidelines limiting the use of acquitted conduct to increase an individual’s federal sentence.

Despite the limitations of the new acquitted conduct provision of the guidelines, white collar defendants should still consider this amendment’s effect on defense advocacy including pre-charge negotiations, trial strategy, and sentencing advocacy.

Narrowing the scope of conduct to be considered in the application of the sentencing guidelines following a mixed verdict may benefit certain white-collar defendants who are charged with multiple federal crimes with distinct elements or arising from different factual circumstances. This could affect every stage of the case.

Federal Sentencing

Combs was sentenced to 50 months imprisonment following his July 2 convictions under the Mann Act for transporting two women for prostitution. The sentencing was guided by the US Federal Sentencing Guidelines, a set of formulized instructions drafted by the Sentencing Commission, a bipartisan agency created to address concerns regarding sentencing disparities.

Application of the Sentencing Guidelines is a multistep process to calculate a defendant’s sentencing range based on their conduct and criminal history. The analysis includes calculating an “offense level” to reflect the offense for which the defendant was convicted, adjusting for specific offense characteristics related to the offense type, applying any upward or downward departures based on aggravating or mitigating factors, and assessing an individual’s criminal history.

The applicable conduct for applying the guidelines and determining a sentencing range is a defendant’s actual conduct or “relevant conduct,” defined by Section 1B1.3 of the guidelines. The relevant conduct analysis considers the “charge offense” conduct, which looks solely at the elements of the statute of conviction, and “real offense” conduct, which considers the conduct that occurred in connection with an offense.

The resulting guidelines range provides a guidepost for a sentencing judge but isn’t determinative. In addition to calculating a defendant’s guidelines range, 18 U.S.C. Section 3553(a) sets forth factors a sentencing court must consider, including the nature of the offense, the defendant’s history, sentencing objectives, available sentences, policy statements, the need to avoid disparities, and restitution to victims.

Acquitted Conduct Sentencing

Federal sentencing courts have broad discretion regarding the information they are permitted to consider when determining an appropriate sentence. Historically, a court’s consideration of all “relevant conduct” was unrestricted as long as the conduct had a sufficient nexus to the offenses of conviction and met the applicable standard of proof, which in almost all circuits is a preponderance of the evidence.

Until this amendment took effect last year, this meant courts could consider conduct of which a defendant was found not guilty under the “relevant conduct” analysis in making sentencing determinations.

The practice of using acquitted conduct to calculate a defendant’s sentence under the guidelines has been the subject of controversy among jurists, academics, advocates, and members of the public. Opponents argue it undermines the role of the jury and promotes distrust in the integrity of our legal system by punishing individuals for conduct for which a jury found insufficient proof to convict.

Despite this tension, proponents of acquitted-conduct sentencing argue it is difficult to discern exactly what conduct a jury rejected due to the elemental nature of criminal charges. Based on a jury’s verdict alone, there is usually no way to determine which specific allegations they accepted and which they rejected.

Acquitted Conduct Amendment

As of Nov. 1, 2024, the guidelines were amended to exclude acquitted conduct from the relevant conduct analysis. Amendment 826 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 generally restricts a federal sentencing judge from considering acquitted conduct in applying the guidelines and determining a sentence. However, the amendment’s commentary notes that there may be cases in which certain conduct “underlies both an acquitted charge and the instant offense of conviction.”

In such a case, courts are instructed to exercise discretion in determining whether the overlapping conduct qualifies as relevant conduct. Because this change to the guidelines is less than a year old, its implementation in only a handful of recent cases have served as a test of its applicability.

DOJ Challenge

The Department of Justice has vigorously opposed and challenged the validity of this guideline amendment, asserting in a July 31, 2023, letter to the Sentencing Commission that “acquitted conduct generally can’t practically be distinguished from the definition of relevant conduct.”

The DOJ further argued that any change to the use of acquitted conduct shouldn’t restrict judicial factfinding, create unnecessary litigation, or result in sentences that fail to account for the full range of a defendant’s conduct. In support of these arguments, the DOJ has relied on 18 U.S.C. Section 3661 and United States v. Watts.

Applicability for Combs

Following his highly publicized trial, Combs was acquitted of racketeering conspiracy and sex trafficking charges, while the jury found him guilty of two counts of transportation for the purposes of prostitution. Combs’ sentencing hearing and subsequent sentence of 50 months imprisonment provides insight into application of the new acquitted conduct amendment.

Under the prior sentencing rules, Combs may have been subject to a 4-level enhancement if “the offense involved fraud or coercion” despite being acquitted of sex trafficking, which required the government to prove fraud or coercion. Under the recent amendment, this conduct would only be applicable if it establishes, in whole or in part, the instant offense of conviction.

Combs’ sentencing submission largely relied on the lack of fraud or coercion elements in the convicted offenses, arguing that applying a fraud/coercion enhancement would illegally circumvent the acquitted conduct amendment and defy the factual record. Combs’ defense further insisted that enhancing his sentence in any way based on acquitted conduct would raise serious constitutional and fairness concerns under the Fifth and Sixth Amendments.

Conversely, the government argued that the sentencing judge should consider all relevant conduct that establishes the offense of conviction, including Combs’ acquitted conduct. Prosecutors specifically requested the application of a cross-reference pertaining to threats and fear, citing the guidelines instruction that conduct overlapping both an acquitted charge and instant offense of conviction is relevant conduct under the guidelines.

Notably, the sentencing judge addressed the acquitted conduct issue head on during his analysis, noting the lack of guidance from courts on the application of the acquitted conduct amendment. He further indicated the guidelines are ambiguous as to what qualifies as acquitted conduct and that the solution is found in the “unless” clause of the amendment—whether the acquitted conduct establishes, in whole or in part, the instance offense of conviction.

As to specific application of the guidelines, the sentencing judge agreed with prosecutors that the coercion enhancement was applicable based on Combs’ threats to the two women he was convicted of transporting under the Mann Act. Further, the sentencing judge explicitly cited force and coercion as bases for his sentencing determination, finding that Combs’ conduct involved fraud or coercion, consistent with the government’s request for an enhancement on that basis.

However, the judge declined to apply a cross-reference—requiring a finding that Combs engaged in force or threats in connection with a sexual act—which would have increased Combs’ base offense level, thereby significantly increasing his guidelines range. Although the sentencing judge declined to apply the cross-reference, he made clear that Combs’ coercive behavior could still be considered as part of his analysis under Section 3553(a) factors.

White Collar Takeaways

If a defense team believes it has strong defenses to some charges, but the defendant is likely to be convicted of others, the limitations on the use of acquitted conduct could change the calculus of whether it makes sense to proceed to trial.

Defense counsel in these scenarios should consider calculating projected guidelines ranges under all the various verdict scenarios, identifying best- and worst-case possibilities. Such projections can then be used to focus pre-trial investigation resources, resolution negotiations with the government, and ultimately trial strategy.

However, it’s important to emphasize the amendment doesn’t establish any bright-line rule for excluding certain conduct from the judge’s consideration when determining what sentence to impose. As seen in Combs’ sentencing, federal judges still have broad discretion to determine what constitutes relevant and applicable conduct. A judge who has heard detailed evidence of a defendant’s alleged wrongdoing over the course of a trial can still consider such conduct when determining what sentence to impose under the statutory sentencing factors.

Application of this amendment is still subject to fact-specific analysis and will likely be the subject of significant sentencing litigation to establish precedent for how the amendment will be applied. Moreover, though the Sentencing Commission plays an important role in shaping federal sentencing policy, Combs’ sentencing hearing laid bare the limitations of its acquitted conduct rule.

This case makes clear that those who wish to prohibit the consideration of acquitted conduct entirely will likely need to look to Congress. While the breadth and scope of the limitation on the use of acquitted conduct under the sentencing guidelines takes shape, white-collar defense lawyers should continue to assess how this can affect defense strategy at every stage of a case.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Lawrence J. Cameron is partner at Troutman, Pepper, Locke.

Jaycee E. Parker is an associate at Troutman, Pepper, Locke.

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