Federal Sentencing Guidelines Amendment 826: Acquitted Conduct 

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by | January 3, 2025

History of Using Acquitted Conduct in the Federal Sentencing Guidelines

Many people believe that it is unfair for judges to use acquitted conduct to sentence individuals in federal court. Historically, federal judges could consider acquitted conduct because of the two standards of proof in the conviction and sentencing stages. During the conviction stage, the burden of proof is the familiar “beyond a reasonable doubt.” However, during the sentencing stage, the burden of proof is only “a preponderance of the evidence.” This means that conduct may be acquitted because it did not meet the beyond a reasonable doubt standard, but it could still meet the preponderance of the evidence standard.

The Guidelines provide that the base offense level, the specific offense characteristics, and any applicable adjustments are to be determined based upon “relevant conduct.” The Guidelines define “relevant conduct” as “the range of conduct that is relevant to determining the applicable offense level.” USSG § 1B1.3, comment. (backg’d). This includes acts the defendant performed in preparation of the offense, during the offense, and following the offense, USSG § 1B1.3(a)(1), as well as acts and omissions that were a part of the same course of conduct or common scheme or plan as the offense of conviction. USSG § 1B1.3(a)(2)

Because many people—from Supreme Court Justices to those incarcerated based upon acquitted conduct—felt this was unfair, the United States Sentencing Commission changed the rules governing relevant conduct through its Amendment 826, effective November 1, 2024.

Amendment 826

Amendment 826 revised USSG § 1B1.3 to exclude acquitted conduct from being used as relevant conduct in calculating a sentencing guidelines range. The Amendment prohibits federal judges from using acquitted conduct to increase a defendant’s sentence through the sentencing guidelines. 

Amendment 826 carved out an important exception, though. The new language of USSG § 1B1.3 prohibits conduct stemming from acquitted charges in federal court, but it does not prohibit federal judges from considering state or tribal acquittals. 

While Amendment 826 prohibits acquitted conduct from being used by federal judges in determining offense levels during their sentencing guidelines computations, federal judges can still consider acquitted conduct overall when determining the appropriate sentence under 18 U.S.C. § 3661, which states: 

No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.

Acquitted Conduct Post-Amendment 826

After Amendment 826 went into effect on November 1, 2024, acquitted conduct concerning acquitted federal charges cannot be used to determine the sentencing guidelines range. Nevertheless, federal judges are still free to consider acquitted conduct—federal or otherwise—in fashioning a sentence for a defendant, even though the acquitted conduct was not used for purposes of determining the guidelines range.