Imagine the following scenario: you have been charged in a multi-count indictment with several interrelated crimes—one count of conspiracy to commit wire fraud and one count of structuring. The jury acquitted you of the more serious crime of wire fraud conspiracy, but convicted you of structuring. A good outcome, right? The answer may actually surprise you, as your ultimate sentence can end up being just as high as if you have been convicted of both crimes.
As explained in our federal sentencing page, sentences for federal convictions are decided by the judge, who is required by law to consider a number of factors, including something called the United States Sentencing Guidelines–a manual published by the United States Sentencing Commission. The Sentencing Guidelines is an important factor for many federal judges.
It includes a provision called “relevant conduct,” codified under U.S.S.G. § 1B1.3, that requires the judge to decide whether, despite the jury’s verdict of “Not Guilty,” you in fact committed the crime you have been acquitted of. If the Judge finds that you are actually guilty, then he must include that acquitted conduct in calculating the applicable sentencing guidelines range. Even worse, this finding is performed under the “preponderance of the evidence” standard—a much lower burden of proof compared to “beyond a reasonable doubt.”
In theory then, you could be found not guilty of a serious crime, but because of your conviction for a related minor offense, be sentenced as though you were guilty of the more serious offense. The Supreme Court and every circuit in the federal court system has upheld this interpretation of federal sentencing law.
Mercifully, many federal judges are aware of, and critical of, the deeply unfair nature of such an outcome. Some judges will be even willing to grant significant downward variances—that is, sentences significantly below the sentencing guidelines range—when the defendant’s sentencing guidelines range is artificially inflated by acquitted conduct. In one of our recent cases involving similar facts, for example, the Judge granted a downward variance by sentencing the defendant to 48 months imprisonment when his guideline range—which included acquitted conduct—was 78-97 months. During the defendant’s sentencing, the Judge on multiple occasions remarked on the unfairness of sentencing a defendant to long prison terms based on acquitted conduct, as well as the need to respect the jury’s verdict of acquittal.
Of course, not all defendants will be so lucky. Perhaps a particular judge is not troubled by the prospect of sentencing a defendant based on acquitted conduct. Or worse still, maybe a defense attorney will fail to argue that sentencing based on acquitted conduct produces unjust results that contravene the statutory sentencing factors under 18 U.S.C. § 3553. For example, in a recent case coming out of the D.C. Circuit, Jones v. United States, three defendants were convicted selling small quantities of drugs and acquitted of a conspiracy to sell a much larger quantities of drugs. Their sentencing guidelines ranges based on the convicted conduct would have been merely between 33 to 71 months. The district court, however, relied on the acquitted conduct and sentenced the defendants to extremely long prison terms—ranging from 180 months to 225 months.
The defendant in Jones sought certiorari in the Supreme Court, but unfortunately the Supreme Court declined review, with Justices Scalia, Thomas, and Ginsburg dissenting from the denial of cert. Although Jones is a particularly egregious example of a defendant being sentenced based on acquitted conduct, it is not uncommon for defendants to face an increased sentence based on acquitted conduct.
If being sentenced for acquitted conduct is a possibility in your case, you should consider discussing with your attorney whether you may want to challenge the sentencing enhancements by arguing that the evidence does not prove your guilt in the acquitted conduct even by a preponderance standard, or that sentencing you based on on acquitted conduct violates fundamental fairness and would be contrary to the sentencing factors under 18 U.S.C. § 3553.