Sentencing Guidelines Amendment Prevents Judges From Considering Acquitted Conduct at Sentencing

Since the Supreme Court’s decision in United States v. Watts, 19 US 148 (1997), judges have been permitted to consider acquitted conduct when calculating a defendant’s sentencing guidelines range and determining their ultimate sentence. Lawmakers across the political spectrum have since criticized this practice, raising questions as to whether it conflicts with the Constitution’s guarantee that guilt is to be determined by a jury of one’s peers. Indeed, the Supreme Court appeared poised to revisit the holding in Watts last summer but decided not to grant certiorari, leaving the issue unresolved. However, Justices Sotomayor, Kavanaugh, Gorsuch and Coney Barrett all made statements that the practice of considering acquitted conduct at sentencing “raises important questions” and noted that the decision in Watts may need to be addressed if the US Sentencing Commission did not take action. 

It appears that the US Sentencing Commission heard the Supreme Court’s message loud and clear. On April 17, a bi-partisan panel of the US Sentencing Commission voted unanimously to prevent judges from considering a defendant’s acquitted conduct when determining their ultimate sentence. Prior to the panel’s vote, a significant number of federal defendants have had their sentences enhanced outside the recommended range pursuant to the holding in Watts (see, e.g., United States v. McClinton, 23 F.4th 732 (7th Cir. 2022) (sentencing the defendant to 20 years in prison for robbery – despite the recommended range being five to six years – after factoring in a murder charge of which the defendant was acquitted). The amendment would prohibit judges from engaging in such a practice moving forward. 

Although the amendment is largely seen as a victory for federal defendants and defense lawyers alike, the scope of the amendment’s impact remains unclear. For instance, although the amendment would generally prevent courts from considering acquitted conduct when imposing a defendant’s sentence, such conduct may still be considered relevant for purposes of a guideline’s calculation if the acquitted conduct “also establishes, in whole or in part, the instant offense of conviction.” Moreover, the US Department of Justice opposed barring the practice, expressing concern over inconsistent verdicts and acquittals on technical grounds such as jurisdiction. In addition, the panel was divided on whether the amendment would apply retroactively and left that issue open for a possible vote in the future. 

Absent congressional intervention, the amendment is scheduled to go into effect on November 1, 2024.