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On April 17, 2024, the seven-member panel of the U.S. Sentencing Commission voted to adopt an amendment prohibiting judges from using acquitted conduct in applying the federal sentencing guidelines. Previously, and consistent with the decision in United States. v. Watts, 519 U.S. 148, 157 (1997) (per curiam) (holding that “a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of evidence”), federal judges were permitted to consider acquitted conduct under the guidelines, and typically did so through application of U.S.S.G. § 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)), § 1B1.4 (Information to be Used in Imposing Sentence), and § 6A1.3 (Resolution of Disputed Factors (Policy Statement)).

The U.S. Supreme Court put the Sentencing Commission on notice last year when it relisted several petitions for certiorari that asserted challenges to the constitutionality of considering acquitted conduct in sentencing calculations. However, the Court ultimately declined to grant certiorari and hear those cases. Several justices indicated that it was appropriate for the Court to wait on considering such challenges until the Sentencing Commission addressed the issue. See, e.g., McClinton v. United States, 143 S. Ct. 2400, 2400-03 (2023) (Sotomayor, J., statement) and id. at 2403 (Kavanaugh, J., statement, joined by Gorsuch, J., and Barrett, J.). The vote by the Sentencing Commission was part of several amendments passed on April 17 for the purpose of, according to Commission Chair Judge Carlton W. Reeves, “creating a more effective and just sentencing system.” Regarding the change pertaining to acquitted conduct, Chair Reeves stated: “Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

Despite the Sentencing Commission’s unanimous decision on the acquitted conduct reform, questions remain as to the scope and status of the proposed amendment, including whether the amendment will apply retroactively and whether it will face congressional opposition. Unless Congress legislates to the contrary, the amendment is scheduled to take effect on November 1, 2024.