On April 14, 2024, the United States Sentencing Commission (USSC) unanimously voted to pass a package of federal sentencing reforms dealing with acquitted conduct and age considerations.


The issue of acquitted conduct, and even uncharged conduct, has long been used by federal judges as “relevant conduct” in determining sentencing so long as the judge could determine by a “preponderance of evidence” that the conduct occurred. This meant that sentencing judges could use prior conduct for which juries found defendants “not guilty” to increase a sentence.


The U.S. Supreme Court held in 1997 that the use of such conduct does not create double jeopardy issues. However, at least two current Supreme Court justices (Gorsuch and Kavanaugh) and numerous legal scholars have either questioned or criticized the use of such conduct for some time.


Last term, the Supreme Court in McClinton v. United States (June 2023) was asked to review the issue again. While the Court refused to do so, Justices Sotomayor, Gorsuch, Kavanaugh, and Barrett said they were reserving judgment on the issue while the USSC studied the matter. In a statement accompanying the Court’s refusal to hear the case, Justice Sotomayor noted, “the use of acquitted conduct to increase a defendant’s Sentencing Guidelines range and sentence raises important questions that go to the fairness and perceived fairness of the criminal justice system.”


The U.S. Sentencing Commission heard the Supreme Court’s call.


“The proposed amendment would amend the Guidelines Manual to address the use of acquitted conduct for purposes of determining a sentence. It would provide that relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.”


USSC Chairman Carlton Reeves explained the Commission’s decision to remove acquitted conduct from the federal sentencing scheme: “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.”


The second significant reform in the USSC’s April 17 package is the amendment that would allow judges to downward depart on a sentence based on age “if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability, and the age-crime curve.”


The USSC also passed reforms that will bring uniformity in sentencing in specific gun and financial crimes—gun crimes involving altered or obliterated serial numbers and the definition of “loss” in financial crimes. 


These amendments will be delivered to Congress and if no legislative changes are made to themthe amendments will become effective November 1, 2024.


These 2024 USSC amendments follow the Commission’s August 2023 amendments that significantly altered how criminal history is considered under the sentencing guidelines. A federal sentence recommendation under the guidelines is based primarily on two factors: 1) the offense level and 2) the criminal history of the defendant.


In his January 15, 2024 article (“Federal Sentencing Amendment 821: Thousands of Prisoners May Be Affected“) in the New York Law Journal, attorney Michael Jaccarino explained the intersection between the two factors:


“The Guidelines also assign each offender to one of six criminal history categories based upon the extent of an offender’s past misconduct, and the final offense level is determined by taking the base offense level and then adding or subtracting from any specific offense characteristics and adjustments that apply. The point at which the final offense level and the criminal history of the offender intersect on the Sentencing Commission’s sentencing table determines the defendant’s Sentencing Guideline range or, more importantly, the number of months in federal prison.”


Jaccarino explained that Amendment 821 could be so impactful because it made thousands of federal inmates eligible for a two-point reduction in their criminal history, thereby reducing their sentences by months, even years, because the amendment became retroactive on February 1, 2024.


It seems the now bipartisan Sentencing Commission is taking steps to undo a litany of draconian guidelines that may make for more equitable federal sentencing. We hope so.