Sentencing Guidelines Proposal May Encourage More Trials

On Jan. 12, the U.S. Sentencing Commission, in an act that has been lauded by the defense bar and criminal justice reform advocates alike, published proposed amendments to the U.S. sentencing guidelines for the first time in over four years.

Proposed amendments that are of particular interest to the defense bar and criminal justice advocates are those to U.S. sentencing guidelines Section 1B1.3 regarding the use of relevant conduct at a defendant's sentencing, including acquitted conduct, uncharged conduct and conduct contained in charges that were dismissed.

As is typical for any proposed amendment, the commission has requested public comment on its proposal before any final rule is enacted. The notice-and-comment period on the proposed amendments was open until March 14, with May 1 as the deadline for when the commission will send the proposed amendments to Congress for consideration.

Then, Congress has six months to veto the proposed amendments. Accordingly, the proposed amendments could become effective by Nov. 1.

Given the centrality of "relevant" conduct to the entire construct of the sentencing guidelines, the proposed amendments would significantly affect both a defendant who chooses to exercise their Sixth Amendment right to take their case to trial and is found guilty of some, but not all the counts in an indictment, as well as those defendants who decide to plead guilty in conjunction with a plea agreement.

If the proposed amendments go into effect, they very well may influence a defendant's calculation on whether to go to trial in the first place in cases where the government proposes an onerous plea agreement with expansive conduct.

By prohibiting dismissed and acquitted conduct from being considered at sentencing, the proposed changes may provide a defendant in this situation with an opportunity to narrow the potential criminal conduct considered by the court at sentencing, as opposed to conduct that the government may seek to include in a plea offer to expand culpability through the use of relevant conduct.