May 9, 2024

“Not Guilty Means Not Guilty”

by Olivia Gipson

“Not Guilty Means Not Guilty”

On April 17, 2024, the bipartisan United States Sentencing Commission unanimously voted to prohibit judges from considering acquitted conduct in calculating a defendant’s sentencing range under the federal guidelines.[1] This decision comes after both the United States Supreme Court and Congress demonstrated support for this change.

Previously, consideration of acquitted conduct was permitted under the guidelines as it often constituted “Relevant Conduct.” Relevant Conduct included acts and omissions “that were part of the same course of conduct or common scheme or plan as the offense of conviction.”[2] Commentary to the guidelines further provided that “[c]onduct that is not formally charged or is not an element of the offense of conviction may enter into the determination of the applicable guideline range.”[3] Based on this definition, the Supreme Court, in United States v. Watts,[4] determined that acquitted conduct may constitute relevant conduct when deciding one’s sentence. This interpretation allowed judges to increase a defendant’s sentence range based on conduct he or she was acquitted of by a jury of peers.

The case of Dayonta McClinton makes the severity of this injustice clear.[5] McClinton was charged and convicted of robbing a drug store but acquitted of the robbery and murder of his co-defendant.[6] Based on the convicted conduct, McClinton faced a sentence of approximately four to six years.[7] Nonetheless, the government sought a 30-year sentence on the ground that the murder was “relevant conduct” and should be added to the sentencing range.[8] Unfortunately, the court agreed and imposed a sentence of 20 years, essentially ignoring the jury’s determination that McClinton was not guilty.[9]

Last year, the Supreme Court denied certiorari in McClinton in anticipation of the Commission’s decision.[10] In doing so, it noted the importance of jurors’ role in the United Stated judicial process and its concerns about “procedural fairness” and allowing the government to get a “second bite at the apple . . . with a lower standard of proof.”[11] In other words, it is likely that sentencing a defendant based on conduct the judge found by a preponderance of evidence and not beyond a reasonable doubt by a jury runs afoul of one’s due process rights.

The amended guidelines now explicitly state that “Relevant Conduct does not include conduct 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.”[12] This amendment goes into effect November 1, 2024, despite the U.S. Department of Justice’s opposition to the change.

The Commission’s press release with a link to the full amendment can be found here. We will continue to monitor these issues for developments.


[1] Commission Votes Unanimously to Pass Package of Reforms Including Limit on Use of Acquitted Conduct in Sentencing Guidelines, United States Sentencing Commission (April 17, 2024) https://www.ussc.gov/about/news/press-releases/april-17-2024.

[2] U.S.S.G. § 1B1.3. 

[3] U.S.S.G. § 1B1.3 cmt. n. Background.

[4] 519 U.S. 148 (1997).

[5] United States v. McClinton, 23 F.4th 732 (7th Cir. 2022).

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] See McClinton v. United States, 143 S.Ct. 2400 (2023).

[11] Id. at 2402.

[12] Id.

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