In April 2024, the U.S. Sentencing Commission took action to end a controversial practice known as "acquitted conduct" sentencing. Under the previous rule, a defendant who was convicted of one charge but acquitted of another could still face punishment for the acquitted conduct, so long as the government could convince the judge at sentencing that it was more likely than not that the defendant did in fact commit the crime. You read that right—the old rule meant that "not guilty" at trial did not always mean "not guilty" when it came time for sentencing. The commission has rightfully done away with this practice, at least at the federal level.

But what about a case in which a defendant is facing increased punishment at sentencing for a crime he was never charged with? What about a situation where the defendant legally could not even be charged with that crime in the first place? It happens more than you might think. Take for instance the following scenario. A defendant pleads guilty to a fraud crime. The plea agreement contains numerous stipulations but leaves space for the government to argue about the defendant's "relevant conduct" at sentencing. As sentencing approaches, the government informs the parties that it has conducted an investigation and unearthed new evidence that the defendant not only committed fraud, but also intimidated a witness a number of years prior in an attempt to conceal the fraud. The defendant was not charged with witness intimidation, nor could he be given that the statute of limitations ran out long ago. Common sense might dictate that the defendant should not be subject to punishment for that unadjudicated conduct. But in reality, the prosecution may have lucked out. The government faces a much lower burden of proof and virtually no evidentiary hurdles at sentencing.

The situation leaves defendants with a bit of a Hobson's choice. The defendant can choose to fight the allegations at sentencing, which will likely lead to a mini-trial that ultimately may give the prosecution what it wanted in the first place. Once the judge hears the evidence, it will be hard to unring the bell. And given that sentencing is a holistic consideration, the judge may be swayed toward increased punishment even if the prosecution has not met its technical burden.

How is that fair? How is that efficient? These are questions the commission will be grappling with in future amendment cycles. But until the commission closes the unchargeable conduct loophole—or until the U.S. Supreme Court intervenes—criminal defense practitioners would be wise to take prophylactic action to protect their clients during plea negotiations. Setting forth the permissible bounds of "relevant conduct" in plea agreements can help avoid 11th-hour surprises for the defense. It can also help increase the overall fairness and efficiency of sentencing proceedings.

Reprinted with permission from the October 30, 2024, issue of The Legal Intelligencer© 2024 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.