Federal Sentencing Guidelines and “Acquitted Conduct”

Jason Goldman
April 23, 2024
Sentencing and Appellate Practice
Acquitted Conduct

Table of Contents

The Federal Sentencing Guidelines

Since the Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), the Sentencing Guidelines have been rendered advisory in nature, leaving sentences to the district court’s discretion, guided by the Guidelines and the other factors contained within 18 U.S.C. § 3553(a) and bounded by any applicable statutory minimum and maximum.

18 U.S.C. § 3553(a) requires the Court to impose a sentence that is “sufficient, but not greater than necessary.” Id. As this Court is aware, it must “undertake ‘an individualized assessment’” to determine the appropriate sentence, “‘based on the facts presented.’” United States v. Johnson, 567 F.3d 40, 51 (2d Cir. 2009) (quoting Gall v. United States, 552 U.S. 38, 50 (2007)).

In making this determination, the Court must “conduct its own independent review of the [§ 3553(a)] factors, aided by the arguments of the prosecution and defense.” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008). Specifically, the Court shall consider, among other factors:

  1. the nature and circumstances of the offense and the history and characteristics of the defendant; 
  2. the need for the sentence imposed — some text
    1. to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; 
    2. to afford adequate deterrence to criminal conduct; 
    3. to protect the public from further crimes of the defendant; and
    4. to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner[.] 

See 18 U.S.C. § 3553(a).

What is Acquitted Conduct?

Simply stated, acquitted conduct accounts for offenses for which an individual was found not guilty at trial. As a basic example, suppose an individual is on trial for a hobbs act robbery, whereby the government alleges that the person engaged in a robbery which included interstate commerce. In the course of that robbery, the government also alleges that the individual possessed a firearm. Following a trial, a jury found the individual not guilty of firearm possession but guilty of the robbery itself.

Prior to these reforms, a sentencing judge could and would consider the firearm possession during their sentencing determination for the robbery, despite the fact that the individual was actually acquitted (found not guilty) of this conduct. This, of course, would greatly enhance that person’s sentence. Today’s reforms look to curb that injustice by prohibiting judge’s from considering this acquitted conduct during sentencing proceedings.

New Legislation Pertaining to Acquitted Conduct

Recently, the United States Sentencing Commission voted unanimously to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. Hence, the panel approved an amendment which should go into effect on November 1, 2024, and may be applied retroactively to those already sentenced.

If and when this enactment takes place, those who were previously sentenced and who had their acquitted conduct considered at sentencing may be eligible to file a viable and meritorious motion for a lower sentence and earlier release date.

Previously, federal judges had been permitted to consider acquitted conduct (ie., conduct for which a jury had voted not guilty but nonetheless were given weight by judges when handing down a sentence if the individual had been convicted of other crimes). Judges had been allowed to do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.

The U.S. Department of Justice opposed barring the practice, citing the potential for split or inconsistent verdicts or acquittals on technical grounds, like jurisdiction. It also said an acquittal did not mean someone was innocent, just that there was reasonable doubt as to someone's guilt, and that an amendment "could result in sentences that fail to account for a criminal defendant's full range of conduct."

Impact on Sentencing

Ultimately, based on one’s criminal history category, their base level offense, and any enhancements or acceptance points, federal defense lawyers can get out ahead of potential sentencing options even at the earliest stages of a prosecution. This insight will help guide negotiations and will aid in determining whether or not an individual should in fact plead guilty or elect for a trial.

If and when this amendment comes into effect, individuals may be eligible for some form of relief if the record shows that they had been previously sentenced pursuant to a scenario whereby acquitted conduct had been given weight by a federal sentencing judge. 


If you have already been sentenced and believe your sentencing was based on acquitted conduct, contact a federal criminal defense and appeals attorney today to move forward with a potential reduction motion. 

If you are still facing a federal prosecution, it is imperative that you have a federal criminal defense attorney by your side who is well-versed with the sentencing guidelines and any new legislation in order to set you up for the best possible result at your federal sentencing.