Sentencing Guidelines Amendment Would Preclude Acquitted Conduct From Being Used At Sentencing

• Published date: 31 January 2023
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Katten Muchin Rosenman LLP
• Author: Mr Scott Resnik, Michael Rosensaft and Nicholas Liotta

In what may come as a surprise to many, lawmakers across the political spectrum actually agree on at least one thing: the practice of sentencing federal defendants based on acquitted conduct has gone on long enough. Last week, a bi-partisan panel of the U.S. Sentencing Commission voted to issue a proposed amendment that would prohibit judges from considering a defendant's acquitted conduct when calculating their guidelines range and ultimate sentence.

Over two decades have passed since the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997), where the Court permitted judges to consider acquitted charges against defendants when calculating their sentencing guidelines range, so long as the judge concluded that the acquitted conduct was proven by a preponderance of the evidence. Unsurprisingly, many found this holding irreconcilable with the Constitution's guarantee that guilt be determined by a jury of one's peers. Since Watts, a significant number of federal defendants have received enhanced sentences based on a court's consideration of acquitted conduct. In one striking example that is currently the subject of a petition for certiorari to the Supreme Court, United States v. McClinton, 23 F.4th 732 (7th Cir. 2022), the Seventh Circuit affirmed the District Court's use of acquitted conduct when sentencing a defendant for a robbery conviction. While the sentencing guidelines would have recommended a sentence of approximately five to six years' incarceration for the robbery, the judge sentenced him to 20 years after taking into account...