Acquitted conduct is conduct connected to a criminal charge on which the defendant was found not guilty. In federal sentencing, the question is often whether that conduct can affect the guideline range for a different count of conviction. Under the current federal sentencing guideline, conduct for which a defendant was charged and acquitted in federal court is excluded from guideline relevant conduct—unless that same conduct also establishes, in whole or in part, the offense of conviction. The acquittal does not automatically erase every overlapping fact or bar every other lawful sentencing consideration. (U.S. Sentencing Guidelines §1B1.3(c).)
What does the federal-acquittal rule cover?
The court must compare the conduct behind the acquitted count with the conduct supporting the count of conviction. A label such as “acquitted charge” does not answer whether the two counts share an act. The guideline’s commentary says the sentencing court is best positioned to decide whether overlapping conduct establishes part of the convicted offense. That makes the actual charging counts, verdict and guideline calculation more useful than a summary of the trial’s result. (Guidelines §1B1.3(c), Application Note 10.)
| What happened? | What the guideline exclusion does—and does not—say |
|---|---|
| A federal court acquitted the defendant of a charged count. | The conduct behind that count is excluded from guideline relevant conduct unless it also establishes all or part of the offense of conviction. The court must examine the actual overlap. |
| A state court acquitted the defendant, or a charge was dismissed or never brought. | Section 1B1.3(c)’s particular exclusion does not expressly cover those situations. That does not mean the allegation automatically counts; other guideline limits, the facts and reliability still matter. |
| An allegation appears in the sentencing materials but not in the guideline calculation. | The relevant-conduct exclusion does not, by itself, prohibit the court from considering information for another lawful sentencing purpose. The court still must address material disputes under the applicable sentencing process. |
The first two distinctions come from §1B1.3(c) and the Commission’s explanation of Amendment 826. A state acquittal, dismissal or uncharged allegation therefore requires its own analysis; none can be classified from the word “acquitted” alone.
Guideline math is different from the final sentencing decision
The guideline exclusion governs what counts as relevant conduct in calculating a guideline range. It is not a universal rule that the judge must disregard the allegation for every purpose after that calculation. Guidelines §1B1.4, 18 U.S.C. §3661, and the sentencing factors in 18 U.S.C. §3553(a) concern the broader information and factors a court may consider, subject to applicable law. A disputed factual allegation also calls for an adequate opportunity to respond and sufficiently reliable information. (Guidelines §6A1.3.)
The applicable guideline manual matters. The guideline generally calls for the edition in effect at sentencing, but directs use of the offense-date edition if applying the later edition would violate the Ex Post Facto Clause. The court applies an edition as a whole rather than selecting favorable provisions from different years. Counsel should check the offense dates, sentencing date and proposed manual before assuming the current acquitted-conduct provision controls a particular calculation. (Guidelines §1B1.11.)
If an acquitted count appears in a federal sentencing calculation, gather the charging document, verdict or judgment, count of conviction, and the exact report or guideline line that uses the disputed conduct. Those papers let counsel separate a claimed guideline error from an argument about other sentencing information. If the issue appears in a received presentence report, the separate federal report-objection process governs how to raise it with the court; an acquittal alone does not correct the report or guarantee a sentence.
The Law Offices of David S. Chesley can review the case papers and sentencing issue with you. Call (800) 755-5174.