What is Acquitted Conduct in Federal Sentencing?

Acquitted conduct is conduct for which an individual was found not guilty at trial. For example, if an individual on trial for three counts of Hobbs Act armed robberies was convicted on one count and acquitted on two of the robberies, prior to the new reforms, a sentencing judge could consider the conduct of the two acquitted robberies in reaching a sentence. Use of acquitted conduct would greatly enhance a person’s sentence for the offense of conviction. The new reforms look to end that injustice by prohibiting a judge’s consideration of acquitted conduct during sentencing procedures.

The Amendment

The United States Sentencing Commission recently voted unanimously to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal sentencing guidelines. The panel approved this amendment which should go into effect on November 1, 2024, and may be applied retroactively to those persons already sentenced.

If and when this enactment takes place, those who were previously sentenced and who had their acquitted conduct considered at sentencing may be eligible to file a viable and meritorious motion for a lower sentence and earlier release date.

Previously, federal judges had been permitted to consider acquitted conduct (ie., conduct for which a jury had voted not guilty but nonetheless were given weight by judges when handing down a sentence if the individual had been convicted of other crimes). Judges had been allowed to do so because while juries must consider whether a criminal charge is proven beyond a reasonable doubt, judges at sentencing may consider whether facts are proven based on a preponderance of the evidence, a lower standard of proof.

The U.S. Department of Justice opposed barring the practice, citing the potential for split or inconsistent verdicts or acquittals on technical grounds, like jurisdiction. It also said an acquittal did not mean someone was innocent, just that there was reasonable doubt as to someone's guilt, and that an amendment "could result in sentences that fail to account for a criminal defendant's full range of conduct."

Impact on Sentencing

Ultimately, based on one’s criminal history category, their base level offense, and any enhancements or acceptance points, federal defense lawyers can get out ahead of potential sentencing options even at the earliest stages of a prosecution. This insight will help guide negotiations and will aid in determining whether or not an individual should in fact plead guilty or elect for a trial.

When this amendment becomes effective, individuals being sentenced in federal court may be eligible for some relief if the record shows that they had been previously sentenced pursuant to a scenario whereby acquitted conduct had been given weight by a federal sentencing judge.


If you have already been sentenced based on acquitted conduct, contact an experienced federal criminal defense attorney. If you are currently being prosecuted in federal court, it is important that you obtain an experienced federal criminal defense attorney well versed with the sentencing guidelines to achieve the best possible result at federal sentencing.