Synopsis of Proposed Amendment: This proposed amendment is a result of the Commission’s
consideration of possible amendments to the Guidelines Manual to prohibit the use of
acquitted conduct in applying the guidelines. See U.S. Sent’g Comm’n, “Notice of Final
Priorities,” 88 FR 60536 (Sept. 1, 2023).

Acquitted conduct is not expressly addressed in the Guidelines Manual, except for a reference
in the parenthetical summary of the holding in United States v. Watts, 519 U.S. 148 (1997).

See USSG §6A1.3, comment. However, consistent with the Supreme Court’s holding in
Watts, consideration of acquitted conduct is permitted under the guidelines through the
operation of §1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), in
conjunction with §1B1.4 (Information to be Used in Imposing Sentence) and §6A1.3
(Resolution of Disputed Factors (Policy Statement)).

Section 1B1.3 sets forth the principles and limits of sentencing accountability for purposes
of determining a defendant’s guideline range, a concept referred to as “relevant conduct.”
Relevant conduct impacts nearly every aspect of guidelines application, including the
determination of: base offense levels where more than one level is provided, specific offense
characteristics, and any cross references in Chapter Two (Offense Conduct); any
adjustments in Chapter Three (Adjustment); and certain departures and adjustments in
Chapter Five (Determining the Sentence).

Specifically, §1B1.3(a)(1) provides that relevant conduct comprises “all acts and omissions
committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by
the defendant,” and all acts and omissions of others “in the case of a jointly undertaken
criminal activity,” 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.”

Relevant conduct also includes, for some offense types, “all acts and omissions described in
subdivisions (1)(A) and (1)(B) above that were part of the same course of conduct or common
scheme or plan as the offense of conviction,” “all harm that resulted from the acts and
omissions specified in subsections (a)(1) and (a)(2) above, and all harm that was the object
of such acts and omissions,” and “any other information specified in the applicable
guideline.” See USSG §1B1.3(a)(2)–(a)(4). The background commentary to §1B1.3 explains
that “[c]onduct that is not formally charged or is not an element of the offense of conviction
may enter into the determination of the applicable guideline sentencing range.”
The Guidelines Manual also includes Chapter Six, Part A (Sentencing Procedures)
addressing sentencing procedures that are applicable in all cases. Specifically, §6A1.3
provides for resolution of any reasonably disputed factors important to the sentencing
determination. Section 6A1.3(a) provides, in pertinent part, that “[i]n resolving any dispute
concerning a factor important to sentencing determination, the court 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.” The Commentary to §6A1.3 instructs that “[i]n determining the
relevant facts, sentencing judges are not restricted to information that would be admissible
2
at trial” and that “[a]ny information may be considered” so long as it has sufficient indicia
of reliability to support its probable accuracy. The Commentary cites to 18 U.S.C. § 3661
and Supreme Court case law upholding the sentencing court’s discretion in considering any
information at sentencing, so long as it is proved by a preponderance of the evidence.
Consistent with the Supreme Court case law, the Commentary also provides that “[t]he
Commission believes that use of a preponderance of the evidence standard is appropriate to
meet due process requirements and policy concerns in resolving disputes regarding
application of the guidelines to the facts of a case.”
In fiscal year 2022, nearly all sentenced individuals (62,529; 97.5%) were convicted through a
guilty plea. The remaining 1,613 sentenced individuals (2.5% of all sentenced individuals)
were convicted and sentenced after a trial, and 286 of those sentenced individuals (0.4% of all
sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser
included offense.
The proposed amendment would amend the Guidelines Manual to address the use of acquitted
conduct for purposes of determining a sentence. It would provide that relevant 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. It also would add Application Note 10 to the Commentary of §1B1.3, which
would note that there may be cases in which 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.
It would also amend the Commentary to §6A1.3 (Resolution of Disputed Factors (Policy
Statement)) to make conforming revisions addressing the use of acquitted conduct for
purposes of determining the guideline range.
3
Proposed Amendment:
§1B1.3. Relevant Conduct (Factors that Determine the Guideline Range)
(a) CHAPTERS TWO (OFFENSE CONDUCT) AND THREE (ADJUSTMENTS).—Unless
otherwise specified, (i) the base offense level where the guideline specifies
more than one base offense level, (ii) specific offense characteristics and
(iii) cross references in Chapter Two, and (iv) adjustments in Chapter
Three, shall be determined on the basis of the following:
(1) (A) all acts and omissions committed, aided, abetted, counseled,
commanded, induced, procured, or willfully caused by the
defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal
plan, scheme, endeavor, or enterprise undertaken by the
defendant in concert with others, whether or not charged as a
conspiracy), all acts and omissions of others that were—
(i) within the scope of the jointly undertaken criminal activity,
(ii) in furtherance of that criminal activity, and
(iii) reasonably foreseeable in connection with that criminal
activity;
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;
(2) solely with respect to offenses of a character for which §3D1.2(d)
would require grouping of multiple counts, all acts and omissions
described in subdivisions (1)(A) and (1)(B) above that were part of the
same course of conduct or common scheme or plan as the offense of
conviction;
(3) all harm that resulted from the acts and omissions specified in
subsections (a)(1) and (a)(2) above, and all harm that was the object
of such acts and omissions; and
(4) any other information specified in the applicable guideline.
(b) CHAPTERS FOUR (CRIMINAL HISTORY AND CRIMINAL LIVELIHOOD) AND FIVE
(DETERMINING THE SENTENCE).—Factors in Chapters Four and Five that
establish the guideline range shall be determined on the basis of the
conduct and information specified in the respective guidelines.
4
(c) ACQUITTED CONDUCT.—Relevant 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.
Commentary
Application Notes:
* * *
10. Acquitted Conduct.—Subsection (c) provides that relevant conduct does not include conduct
for which the defendant was criminally charged and acquitted in federal court, unless such
conduct establishes, in whole or in part, the instant offense of conviction. There 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.
* * *
§6A1.3. Resolution of Disputed Factors (Policy Statement)
(a) When any factor important to the sentencing determination is reasonably
in dispute, the parties shall be given an adequate opportunity to present
information to the court regarding that factor. In resolving any dispute
concerning a factor important to the sentencing determination, the court
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.
(b) The court shall resolve disputed sentencing factors at a sentencing hearing
in accordance with Rule 32(i), Fed. R. Crim. P.
Commentary
Although lengthy sentencing hearings seldom should be necessary, disputes about sentencing
factors must be resolved with care. When a dispute exists about any factor important to the sentencing
determination, the court must ensure that the parties have an adequate opportunity to present
relevant information. Written statements of counsel or affidavits of witnesses may be adequate under
many circumstances. See, e.g., United States v. Ibanez, 924 F.2d 427 (2d Cir. 1991). An evidentiary
hearing may sometimes be the only reliable way to resolve disputed issues. See, e.g., United States v.
Jimenez Martinez, 83 F.3d 488, 494–95 (1st Cir. 1996) (finding error in district court’s denial of
defendant’s motion for evidentiary hearing given questionable reliability of affidavit on which the
district court relied at sentencing); United States v. Roberts, 14 F.3d 502, 521(10th Cir. 1993)
(remanding because district court did not hold evidentiary hearing to address defendants’ objections
to drug quantity determination or make requisite findings of fact regarding drug quantity); see also,
United States v. Fatico, 603 F.2d 1053, 1057 n.9 (2d Cir. 1979), cert. denied, 444 U.S. 1073 (1980). The
5
sentencing court must determine the appropriate procedure in light of the nature of the dispute, its
relevance to the sentencing determination, and applicable case law.
In determining the relevant facts, sentencing judges are not restricted to information that would
be admissible at trial. See 18 U.S.C. § 3661; see also United States v. Watts, 519 U.S. 148, 154 (1997)
(holding that lower evidentiary standard at sentencing permits sentencing court’s consideration of
acquitted conduct); Witte v. United States, 515 U.S. 389, 399397–401 (1995) (noting that sentencing
courts have traditionally considered wide range of information without the procedural protections of a
criminal trial, including information concerning criminal conduct that may be the subject of a
subsequent prosecutionnoting that sentencing courts have traditionally considered a wide range of
information without the procedural protections of a criminal trial, including information concerning
uncharged criminal conduct, in sentencing a defendant within the range authorized by statute);
Nichols v. United States, 511 U.S. 738, 747–48 (1994) (noting that district courts have traditionally
considered defendant’s prior criminal conduct even when the conduct did not result in a conviction).
Any information may be considered, so long as it has sufficient indicia of reliability to support its
probable accuracy. Watts, 519 U.S. at 157Witte, 515 U.S. at 399–401; Nichols, 511 U.S. at 748; United
States v. Zuleta-Alvarez, 922 F.2d 33 (1st Cir. 1990), cert. denied, 500 U.S. 927 (1991); United States v.
Beaulieu, 893 F.2d 1177 (10th Cir.), cert. denied, 497 U.S. 1038 (1990). Reliable hearsay evidence may
be considered. United States v. Petty, 982 F.2d 1365 (9th Cir. 1993), cert. denied, 510 U.S. 1040 (1994);
United States v. Sciarrino, 884 F.2d 95 (3d Cir.), cert. denied, 493 U.S. 997 (1989). Out-of-court
declarations by an unidentified informant may be considered where there is good cause for the nondisclosure of the informant’s identity and there is sufficient corroboration by other means. United
States v. Rogers, 1 F.3d 341 (5th Cir. 1993); see also United States v. Young, 981 F.2d 180 (5th Cir.), cert.
denied, 508 U.S. 980 (1993); United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978), cert. denied, 444
U.S. 1073 (1980). Unreliable allegations shall not be considered. United States v. Ortiz, 993 F.2d 204
(10th Cir. 1993).
The Commission believes that use of a preponderance of the evidence standard is appropriate to
meet due process requirements and policy concerns in resolving disputes regarding application of the
guidelines to the facts of a case. Acquitted conduct, however, is not relevant conduct for purposes of
determining the guideline range. See §1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the
Guidelines Manual abrogates a court’s authority under 18 U.S.C. § 3661.