“New Acquitted Conduct Guideline: An Analysis”

The title of this post is the title of this recent New York Law Journal essay by Paul Shechtman. The piece merits a full read, as it highlights recent developments on acquitted conduct sentencing and various aspects of the new guideline.  The closing paragraphs highlight some themes:

May a judge consider acquitted conduct in deciding where within the guideline range a defendant should be sentenced? May she vary upward from the guideline range based on acquitted conduct?  In neither instance is the judge including acquitted conduct in calculating relevant conduct, but an affirmative answer to these questions would end run the amendment.

Notably, along with the amendment to §1B1.3, the Commission amended §6A1.3 to reiterate that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. §3661.”  That section states that “[n]o limitation may be placed on information…a court…may receive and consider for the purpose of imposing an appropriate sentence.”

If ever a Sentencing Guideline amendment is well intentioned but perplexing, the acquitted conduct amendment may be it.  Its saving grace may be that in fiscal year 2022, of the 62,529 sentenced individuals, 1,613 were sentenced after trial (2.5%) and, of those, only 286 (.04% of all sentenced defendants) were acquitted of one or more offense or found guilty of only a lesser-included offense.  Thus, the potential issues are nettlesome, but won’t arise often.