Bloomberg Law
April 4, 2023, 9:00 AM

Sentencing Commission to Vote on Handling of Acquitted Conduct

Holly Barker
Holly Barker
Legal Reporter

Criminal defendants who fight multicount indictments at trial lose even if they beat most of the charges—all it takes is one conviction to face a sentence that reflects every count charged.

“To win, you have to pitch a shut out,” Miami-based criminal defense attorney David Markus said.

But that may be starting to change. The US Sentencing Commission is expected on Wednesday to vote on an amendment that would eliminate acquitted conduct from the definition of relevant conduct for purposes of calculating the guidelines range.

Judges would still be able to consider acquitted conduct that was proven beyond a reasonable doubt or admitted by the defendant in plea proceedings or a colloquy.

The amendment has wide support from the defense bar, current and former federal judges, and three US Senators, although some say it won’t completely solve the problem.

Others, including the Victims Advisory Group, oppose the changes, arguing that courts need to be able to consider the full context of an offense. In its opposition, the Department of Justice emphasized the difficulty judges may have in determining what conduct they can or can’t consider.

Even if passed, it won’t solve the problem. The guidelines are advisory, and judges have vast discretion under federal law, Philadelphia-based defense attorney Lisa A. Mathewson said.

Still, “every move in direction in barring use of acquitted conduct in sentencing is valuable,” she said.

Plea Pressure

Defendants who exercise their right to a jury trial are already sentenced more harshly on convicted counts than defendants who plead guilty, so they face heavy pressure to do so, Mathewson said.

Authorizing judges to sentence defendants on additional, acquitted counts compounds the problem, Mathewson said.

It also enable prosecutors to game the system by crafting multicount indictments to insulate against a loss. By including narrow counts, like a false statement or misreporting tax income, within a broad theory with additional but less certain counts, the government can mostly lose and still get a sentence that reflects the conduct the jury said it failed to prove beyond a reasonable doubt.

The risk is too great for most defendants. In 2021, 1.7% of offenders rolled the dice with a trial; of those, .3% were acquitted of at least one offense. The remaining 98.3% of offenders pleaded guilty.

In the white collar context, sentencing enhancements are often driven by monetary loss, but for individuals and entities operating in the health-care space, enhancements related to drug quantity may also matter, Mathewson said.

Mathewson represented a pharmacist who was accused of dispensing controlled substances as part of a drug dealing conspiracy. He was convicted for filling five fraudulent opioid prescriptions, but acquitted on the conspiracy charge.

The court nevertheless included all of the prescriptions distributed in the course of the alleged conspiracy to determine his sentencing guidelines range, increasing his sentence from five to 15 years.

Mathewson sought US Supreme Court review in that case and although the court requested a response from the government, it was ultimately denied.

Constitutional Questions

The current guidelines don’t explicitly address acquitted conduct, but a reference in the commentary to United States v. Watts—which would be removed by the proposed amendment—has permitted its consideration in sentencing.

In Watts, decided in 1997, the US Supreme Court held that a sentencing judge may consider conduct underlying an acquitted charge as long as that conduct has been proven by a preponderance of the evidence.

But the practice has been long criticized—including by some justices—for violating Fifth Amendment due process and the Sixth Amendment right to a jury trial.

In a dissent to a denial of a petition for certiorari Justice Antonin Scalia wrote that the practice had “gone on long enough.”

Joined by Justices Clarence Thomas and Ruth Bader Ginsberg, Scalia said the court should either “put an end to the unbroken string of cases disregarding the Sixth Amendment,” or “eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”

Justices Neil M. Gorsuch and Brett M. Kavanaugh have also criticized acquitted conduct sentencing.

Law of the Land

Altering the landscape to ensure that defendants are sentenced only for conduct for which they have been found guilty beyond a reasonable doubt is going to take Supreme Court intervention, Mark Allenbaugh, an attorney and sentencing consultant with the Law Office of Alan Ellis and founder of Sentencing Stats LLC, said.

There are at least seven pending certiorari petitions that raise Fifth and Sixth Amendment challenges to acquitted conduct sentencing. Although the court has punted the issue in the past, the composition of the court has changed.

As former vice chair of the sentencing commission, Justice Ketanji Brown Jackson is a likely vote to hear one or more of these cases, Allenbaugh said. With Gorsuch, Thomas, and Kavanaugh, that would make the four votes needed to grant review, he said.

The lead petition raising the issue has been relisted, possibly as the justices await the commission’s vote.

The 2023 guidelines amendment cycle ends May 1. If the commission adopts the amendment, it’ll take effect Nov. 1 unless Congress rejects it.

To contact the reporter on this story: Holly Barker in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at; Carmen Castro-Pagán at

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