The U.S. Sentencing Commission has adopted amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines (The “Acquitted Conduct Amendment”). Acquitted conduct refers to the actions for which a defendant was acquitted but are still considered during sentencing.

Currently, acquitted conduct is not directly addressed in the Guidelines Manual, except for a reference in the summary of the United States v. Watts case. However, the Supreme Court’s holding in Watts allows for the consideration of acquitted conduct under the guidelines through the operation of several sections.

Section 1B1.3, which sets forth the principles and limits of sentencing accountability, allows for the consideration of “relevant conduct” in determining a defendant’s guideline range. This includes all acts and omissions committed by the defendant and others in the case of a jointly undertaken criminal activity.

Relevant conduct also includes all acts and omissions that were part of the same course of conduct or common scheme or plan as the offense of conviction, all harm that resulted from such acts and omissions, and any other information specified in the applicable guideline.

The Guidelines Manual also includes Chapter Six, Part A, which addresses sentencing procedures applicable in all cases. Specifically, §6A1.3 provides for the resolution of any reasonably disputed factors 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.

The proposed amendment to prohibit the use of acquitted conduct in applying the guidelines could have significant implications for sentencing procedures and the rights of defendants. The Commission’s decision on this matter is eagerly awaited.

Full text of the Acquitted Conduct Amendment can be found here on Page 17.