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AMENDMENT 826
Amendment: Section 1B1.3 is amended—
in subsection (a), in the heading, by striking “Chapters Two (Offense Conduct) and Three (Adjustments).” and inserting “Chapters Two (Offense Conduct) and Three (Adjustments).—”;
in subsection (b), in the heading, by striking “Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).” and inserting “Chapters Four (Criminal History and Criminal Livelihood) and Five (Determining the Sentence).—”;
and by inserting at the end the following new subsection (c):
“(c) Acquitted Conduct.—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.”.
The Commentary to 1B1.3 captioned “Application Notes” is amended by inserting at the end the following new Note 10:
“10. Acquitted Conduct.—Subsection (c) provides that relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct establishes, in whole or in part, the instant offense of conviction. There may be cases in which certain conduct underlies both an acquitted charge and the instant offense of conviction. In those cases, the court is in the best position to determine whether such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct.”.
The Commentary to 6A1.3 is amended—
by striking “see also United States v. Watts, 519 U.S. 148, 154 (1997) (holding that lower evidentiary standard at sentencing permits sentencing court’s consideration of acquitted conduct); Witte v. United States, 515 U.S. 389, 399–401 (1995) (noting that sentencing courts have traditionally considered wide range of information without the procedural protections of a criminal trial, including information concerning criminal conduct that may be the subject of a subsequent prosecution);” and inserting “Witte v. United States, 515 U.S. 389, 397–401 (1995) (noting that sentencing courts have traditionally considered a wide range of information without the procedural protections of a criminal trial, including information concerning uncharged criminal conduct, in sentencing a defendant within the range authorized by statute);”;
by striking “Watts, 519 U.S. at 157” and inserting “Witte, 515 U.S. at 399–401”;
and by inserting at the end of the paragraph that begins “The Commission believes that use of a preponderance of the evidence standard” the following: “Acquitted conduct, however, is not relevant conduct for purposes of determining the guideline range. See 1B1.3(c) (Relevant Conduct). Nonetheless, nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. 3661.”.
Reason for Amendment: This amendment revises 1B1.3 (Relevant Conduct (Factors that Determine the Guideline Range)) to exclude acquitted conduct from the scope of relevant conduct used in calculating a sentence range under the federal guidelines. Acquitted conduct is unique, and this amendment does not comment on the use of uncharged, dismissed, or other relevant conduct as defined in 1B1.3 for purposes of calculating the guideline range.
The use of acquitted conduct to increase a defendant’s sentence has been a persistent concern for many within the criminal justice system and the subject of robust debate over the past several years. A number of jurists, including current and past Supreme Court Justices, have urged reconsideration of acquitted-conduct sentencing. See, e.g., McClinton v. United States, 143 S. Ct. 2400, 2401 & n.2 (2023) (Sotomayor, J., Statement respecting the denial of certiorari) (collecting cases and statements opposing acquitted-conduct sentencing). In denying certiorari last year in McClinton, multiple Justices suggested that it would be appropriate for the Commission to resolve the question of how acquitted conduct is considered under the guidelines. See id. at 2402–03; id. at 2403 (Kavanaugh, J., joined by Gorsuch, J. and Barrett, J., Statement respecting the denial of certiorari), but see id. (Alito, J., concurring in the denial of certiorari). Many states have prohibited consideration of acquitted conduct. See id. at 2401 n.2 (collecting cases). And, currently, Congress is considering bills to prohibit its consideration at sentencing, with bipartisan support. See Prohibiting Punishment of Acquitted Conduct Act of 2023, S. 2788, 118th Cong. (1st Sess. 2023); Prohibiting Punishment of Acquitted Conduct Act of 2023, H.R. 5430, 118th Cong. (1st Sess. 2023).
First, the amendment revises 1B1.3 by adding new subsection (c), which provides that “[r]elevant 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.” This rule seeks to promote respect for the law, which is a statutory obligation of the Commission. See 28 U.S.C 994(a)(2); id. 991(b)(1)(A) & (B); 18 U.S.C. 3553(a)(2).
This amendment seeks to promote respect for the law by addressing some of the concerns that numerous commenters have raised about acquitted-conduct sentencing, including those involving the “perceived fairness” of the criminal justice system. McClinton, 143 S. Ct. at 2401 (Sotomayor, J., Statement respecting the denial of certiorari). Some commenters were concerned that consideration of acquitted conduct to increase the guideline range undermines the historical role of the jury and diminishes “the public’s perception that justice is being done, a concern that is vital to the legitimacy of the criminal justice system.” McClinton, 143 S. Ct. at 2402–03 (Sotomayor, J., Statement respecting the denial of certiorari); see United States v. Settles, 530 F.3d 920, 924 (D.C. Cir. 2008) (expressing concern that “using acquitted conduct to increase a defendant’s sentence undermines respect for the law and the jury system”). They argue that consideration of acquitted conduct at sentencing contributes to the erosion of the jury-trial right and enlarges the already formidable power of the government, reasoning that defendants who choose to put the government to its proof “face all the risks of conviction, with no practical upside to acquittal unless they . . . are absolved of all charges.” United States v. Bell, 808 F.3d 926, 932 (D.C. Cir. 2015) (Millett, J., concurring in the denial of reh’g en banc). For these reasons, “acquittals have long been ‘accorded special weight,’ distinguishing them from conduct that was never charged and passed upon by a jury,” McClinton, 143 S. Ct. at 2402 (Sotomayor, J., Statement respecting the denial of certiorari (quoting United States v. DiFrancesco, 449 U.S. 117, 129 (1980))) and viewed as “inviolate,” McElrath v. Georgia, 601 U.S. 87, 94 (2024).
Second, the amendment adds new Application Note 10 to 1B1.3(c), which instructs that in “cases in which certain conduct underlies both an acquitted charge and the instant offense of conviction . . . , the court is in the best position to determine whether such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct.” The amendment thus clarifies that while “acquitted conduct” cannot be considered in determining the guideline range, any conduct that establishes—in whole or in part—the instant offense of conviction is properly considered, even as relevant conduct and even if that same conduct also underlies a charge of which the defendant has been acquitted. During the amendment cycle, commenters raised questions about how a court would be able to parse out acquitted conduct in a variety of specific scenarios, including those involving “linked or related charges” or “overlapping conduct” (e.g., conspiracy counts in conjunction with substantive counts or obstruction of justice counts in conjunction with substantive civil rights counts). Commission data demonstrate that cases involving acquitted conduct will be rare. In fiscal year 2022, of 62,529 sentenced individuals, 1,613 were convicted and sentenced after a trial (2.5% of all sentenced individuals), and of those, only 286 (0.4% of all sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser included offense.
To ensure that courts may continue to appropriately sentence defendants for conduct that establishes counts of conviction, rather than define the specific boundaries of “acquitted conduct” and “convicted conduct” in such cases, the Commission determined that the court that presided over the proceeding will be best positioned to determine which conduct can properly be considered as part of relevant conduct based on the individual facts in those cases.
The amendment limits the scope of “acquitted conduct” to only those charges of which the defendant has been acquitted in federal court. This limitation reflects the principles of the dual-sovereignty doctrine and responds to concerns about administrability. The chief concern regarding administrability raised by commenters throughout the amendment cycle was whether courts would be able to parse acquitted conduct from convicted conduct in cases in which some conduct relates to both the acquitted and convicted counts. The Commission appreciates that federal courts may have greater difficulty making this determination if it involves proceedings that occurred in another jurisdiction and at different times.
Third, and finally, the amendment makes corresponding changes to §6A1.3 (Resolution of Disputed Factors (Policy Statement)), restating the principle provided in 1B1.3(c) and further clarifying that “nothing in the Guidelines Manual abrogates a court’s authority under 18 U.S.C. 3661.”
Effective Date: The effective date of this amendment is November 1, 2024.
AMENDMENT 829
Amendment: Section 5H1.1 is amended by striking the following:
“Age (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines. Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration. Physical condition, which may be related to age, is addressed at 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).”;
and inserting the following:
“Age may be relevant in determining whether a departure is warranted.
Age may be a reason to depart downward in a case in which the defendant is elderly and infirm and where a form of punishment such as home confinement might be equally efficient as and less costly than incarceration.
A downward departure also may be warranted due to the defendant’s youthfulness at the time of the offense or prior offenses. Certain risk factors may affect a youthful individual’s development into the mid-20’s and contribute to involvement in criminal justice systems, including environment, adverse childhood experiences, substance use, lack of educational opportunities, and familial relationships. In addition, youthful individuals generally are more impulsive, risk-seeking, and susceptible to outside influence as their brains continue to develop into young adulthood. Youthful individuals also are more amenable to rehabilitation.
The age-crime curve, one of the most consistent findings in criminology, demonstrates that criminal behavior tends to decrease with age. Age-appropriate interventions and other protective factors may promote desistance from crime. Accordingly, in an appropriate case, the court may consider whether a form of punishment other than imprisonment might be sufficient to meet the purposes of sentencing.
Physical condition, which may be related to age, is addressed at 5H1.4 (Physical Condition, Including Drug or Alcohol Dependence or Abuse; Gambling Addiction).”.
Reason for Amendment: This amendment makes several revisions to 5H1.1 (Age (Policy Statement)), which addresses the relevance of age in sentencing. Before the amendment, 5H1.1 provided, in relevant part, that “[a]ge (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”
The amendment revises the first sentence in 5H1.1 to provide more broadly that “[a]ge may be relevant in determining whether a departure is warranted.” It also adds language specifically providing that a downward departure may be warranted in cases in which the defendant was youthful at the time of the instant offense or any prior offenses. In line with the Commission’s statutory duty to establish sentencing policies that reflect “advancement in knowledge of human behavior as it relates to the criminal justice process,” 28 U.S.C. 991(b)(1)(C), this amendment reflects the evolving science and data surrounding youthful individuals, including recognition of the age-crime curve and that cognitive changes lasting into the mid-20s affect individual behavior and culpability. The amendment also reflects expert testimony to the Commission indicating that certain risk factors may contribute to youthful involvement in criminal justice systems, while protective factors, including appropriate interventions, may promote desistance from crime.
Effective Date: The effective date of this amendment is November 1, 2024.
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AMENDMENT 827
Amendment: Section 2B1.1(b)(1) is amended by inserting the following at the end:
“ *Notes to Table:
(A) Loss.—Loss is the greater of actual loss or intended loss.
(B) Gain.—The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.
(C) For purposes of this guideline—
(i) ‘Actual loss’ means the reasonably foreseeable pecuniary harm that resulted from the offense.
(ii) ‘Intended loss’ (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).
(iii) ‘Pecuniary harm’ means harm that is monetary or that otherwise is readily measurable in money. Accordingly, pecuniary harm does not include emotional distress, harm to reputation, or other non-economic harm.
(iv) ‘Reasonably foreseeable pecuniary harm’ means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.”.
The Commentary to 2B1.1 captioned “Application Notes” is amended in Note 3—
by striking subparagraphs (A) and (B) as follows:
“(A) General Rule.—Subject to the exclusions in subdivision (D), loss is the greater of actual loss or intended loss.
(i) Actual Loss.—‘Actual loss’ means the reasonably foreseeable pecuniary harm that resulted from the offense.
(ii) Intended Loss.—‘Intended loss’ (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).
(iii) Pecuniary Harm.—‘Pecuniary harm’ means harm that is monetary or that otherwise is readily measurable in money. Accordingly, pecuniary harm does not include emotional distress, harm to reputation, or other non-economic harm.
(iv) Reasonably Foreseeable Pecuniary Harm.—For purposes of this guideline, ‘reasonably foreseeable pecuniary harm’ means pecuniary harm that the defendant knew or, under the circumstances, reasonably should have known, was a potential result of the offense.
(v) Rules of Construction in Certain Cases.—In the cases described in subdivisions (I) through (III), reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows:
(I) Product Substitution Cases.—In the case of a product substitution offense, the reasonably foreseeable pecuniary harm includes the reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered, or of retrofitting the product so that it can be used for its intended purpose, and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim’s business operations caused by the product substitution.
(II) Procurement Fraud Cases.—In the case of a procurement fraud, such as a fraud affecting a defense contract award, reasonably foreseeable pecuniary harm includes the reasonably foreseeable administrative costs to the government and other participants of repeating or correcting the procurement action affected, plus any increased costs to procure the product or service involved that was reasonably foreseeable.
(III) Offenses Under 18 U.S.C. 1030.—In the case of an offense under 18 U.S.C. 1030, actual loss includes the following pecuniary harm, regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other damages incurred because of interruption of service.
(B) Gain.—The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.”;
inserting the following new subparagraph (A):
“(A) Rules of Construction in Certain Cases.—In the cases described in clauses (i) through (iii), reasonably foreseeable pecuniary harm shall be considered to include the pecuniary harm specified for those cases as follows:
(i) Product Substitution Cases.—In the case of a product substitution offense, the reasonably foreseeable pecuniary harm includes the reasonably foreseeable costs of making substitute transactions and handling or disposing of the product delivered, or of retrofitting the product so that it can be used for its intended purpose, and the reasonably foreseeable costs of rectifying the actual or potential disruption to the victim’s business operations caused by the product substitution.
(ii) Procurement Fraud Cases.—In the case of a procurement fraud, such as a fraud affecting a defense contract award, reasonably foreseeable pecuniary harm includes the reasonably foreseeable administrative costs to the government and other participants of repeating or correcting the procurement action affected, plus any increased costs to procure the product or service involved that was reasonably foreseeable.
(iii) Offenses Under 18 U.S.C. 1030.—In the case of an offense under 18 U.S.C. 1030, actual loss includes the following pecuniary harm, regardless of whether such pecuniary harm was reasonably foreseeable: any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost incurred, or other damages incurred because of interruption of service.”;
and by redesignating subparagraphs (C), (D), (E), and (F) as subparagraphs (B), (C), (D), and (E), respectively.
The Commentary to 2B2.3 captioned “Application Notes” is amended in Note 2 by striking “the Commentary to 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “2B1.1 (Theft, Property Destruction, and Fraud) and the Commentary to 2B1.1”.
The Commentary to 2C1.1 captioned “Application Notes” is amended in Note 3 by striking “Application Note 3 of the Commentary to 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “2B1.1 (Theft, Property Destruction, and Fraud) and Application Note 3 of the Commentary to 2B1.1”.
The Commentary to 8A1.2 captioned “Application Notes” is amended in Note 3(I) by striking “Commentary to 2B1.1 (Theft, Property Destruction, and Fraud)” and inserting “2B1.1 (Theft, Property Destruction, and Fraud) and the Commentary to 2B1.1”.
Reason for Amendment: This amendment is a result of the Commission’s continued study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary. In Stinson v. United States, 508 U.S. 36, 38 (1993), the Supreme Court held that commentary “that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Following Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019), which limited deference to executive agencies’ interpretation of regulations to situations in which the regulation is “genuinely ambiguous,” the deference afforded to various guideline commentary provisions has been debated and is the subject of conflicting court decisions.
Applying Kisor, the Third Circuit has held that Application Note 3(A) of the commentary to 2B1.1 (Theft, Property Destruction, and Fraud) is not entitled to deference. See United States v. Banks, 55 F.4th 246 (3d Cir. 2022). Application Note 3(A) provides a general rule that “loss is the greater of actual loss or intended loss” for purposes of the loss table in 2B1.1(b)(1), which increases an individual’s offense level based on loss amount. In Banks, the Third Circuit held that “the term ‘loss’ [wa]s unambiguous in the context of 2B1.1” and that it unambiguously referred to “actual loss.” The Third Circuit reasoned that “the commentary expand[ed] the definition of ‘loss’ by explaining that generally ‘loss is the greater of actual loss or intended loss,’ ” and therefore “accord[ed] the commentary no weight.” Banks, 55 F.4th at 253, 258.
The loss calculations for individuals in the Third Circuit are now computed differently than elsewhere, where other circuit courts have uniformly applied the general rule in Application Note 3(A). The Commission estimates that before the Banks decision approximately 50 individuals per year were sentenced using intended loss in the Third Circuit.
To ensure consistent loss calculation across circuits, the amendment creates Notes to the loss table in 2B1.1(b)(1) and moves the general rule establishing loss as the greater of actual loss or intended loss from the commentary to the guideline itself as part of the Notes. The amendment also moves rules providing for the use of gain as an alternative measure of loss, as well as the definitions of “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm,” from the Commentary to the Notes. In addition, the amendment makes corresponding changes to the Commentary to 2B2.3 (Trespass), 2C1.1 (Offering, Giving, Soliciting, or Receiving a Bribe; Extortion Under Color of Official Right; Fraud Involving the Deprivation of the Intangible Right to Honest Services of Public Officials; Conspiracy to Defraud by Interference with Governmental Functions), and 8A1.2 (Application Instructions ― Organizations), which calculate loss by reference to the Commentary to 2B1.1.
While the Commission may undertake a comprehensive review of 2B1.1 in a future amendment cycle, this amendment aims to ensure consistent guideline application in the meantime without taking a position on how loss may be calculated in the future.
Effective Date: The effective date of this amendment is November 1, 2024.
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