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Has the US Sentencing Commisison’s acquitted conduct amendment had much of an impact (and just how might we tell)?

By Douglas Berman

Almost exactly one year ago (as noted in this post), the US Sentencing Commission voted to amend the US Sentencing Guidelines to “exclude federally acquitted conduct from the scope of relevant conduct considered under the sentencing guidelines, while not abrogating a court’s authority under 18 U.S.C. § 3661.”   (This specific account of the amendment comes from this helpful “amendment in brief” document produced by the Commission.)  The amendment, which formally became law on November 1, 2024, means that “federally acquitted conduct” may no longer be used in the calculation of guideline sentencing ranges, but judges still have broad discretionary authority to consider such conduct when determining what exact sentence to impose on a defendant.

The question in the title of this post is prompted not only by the anniversary of the USSC’s unanimous vote, but also by Billy Binion’s terrific article in the new issue of Reason magazine titled “Not Guilty but Punished Anyway: Sentencing defendants based on acquitted conduct violates basic notions of justice.”  I recommend the full article for its effective review of the history and intricacies of acquitted conduct sentencing, as well as its emphasis on the limited legal consequences of the Commission’s guideline amendment.  As the article explains, the guideline amendment is just a policy change to the operation of now-advisory guidelines, and so legally has much less impact than might a constitutional ruling (or even congressional enactment) that could place more robust restrictions on the consideration of acquitted conduct at sentencing.  

That all said, “just” the exclusion of federally acquitted conduct from guideline calculations still seems quite important both symbolically and practically.  Of course, USSC data indicate that only a couple hundred defendants are sentenced in federal court after being acquitted on some charges, so it is possible to believe that the USSC’s acquitted conduct amendment is likley only to impact (a subset of) the relatively few federal defendants who go to trial and get a split verdict from a jury.  And yet, the long-standing prospect of acquitted conduct guideline enhancements surely has long influenced, at least in some set of cases, how federal defendants, defense attorneys and prosecutors approached plea negotiations.  Even though federal judges still have discretion to consider acquitted conduct at sentencing, might some plea deals in some cases be in some ways influenced by the new reality that acquitted conduct cannot and will not be used in guideline calculations (while, of course, uncharged and dismissed conduct certainly still can and will be so used)?   But just how might we tell — especially within a federal system of pleas that, as Professor Sam Merchant explains in his article in the latest issue of of the Federal Sentencing Reporter, involves a “framework of fictions.” 

In this post a few years ago about acquitted conduct practices, I asked “Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing?”.  I have still never gotten a satisfying (or even unsatisfying) answer to this question, though the Reason article suggests some might get a satisfying outcome if the new acquitted conduct amendment were to be made retroactive.  And so I will close this post with that article’s closing paragraphs:

If neither Congress nor the Supreme Court intervenes, the sentencing commission’s amendment will remain the best hope for critics of acquitted-conduct sentencing. But in addition to the question of whether judges will listen, it remains unclear whether the commission will decide that the amendment should apply retroactively, which would allow resentencing of previously convicted prisoners. Retroactivity could be a lifeline for many defendants—including McClinton, who has now been behind bars longer than the maximum the guidelines recommended based on his convictions.

Jessie Ailsworth was released from federal custody in 2019, but he is still paying close attention to this debate. “I stood with my lawyer and heard ‘not guilty’ over and over,” he told the commission at a March 2024 hearing. His 1996 trial on drug conspiracy charges ended with 28 acquittals and seven convictions: three counts of possessing crack with the intent to sell it, three counts of food stamp fraud, and one count of using a communication facility to distribute drugs. But even though the jury found him not guilty of the most serious charges, the judge relied on those charges in sentencing him to 30 years in prison.

“I learned responsibility, which took some time,” Ailsworth explained. “But the hardest lesson I’ve learned is the lesson I learned at sentencing….Not guilty verdicts are meaningless at sentencing if you have even one guilty verdict. In a system based on justice and fairness, where is the fairness in that?”

It’s a question many similarly situated defendants, whose stories often go unnoticed, likely have found themselves asking. It is also a question that jurors, whose mandatory service purportedly serves as a check on the government, may continue to ask themselves.

“Not guilty means not guilty,” Judge Reeves said as he unveiled the amendment aimed at curtailing acquitted-conduct sentencing. Time will tell if the government makes good on that promise.

Recent related posts (of hundreds on acquitted conduct over 20+ years):