Public Hearing Testimony

U.S. Department of Justice

Criminal Division

Office of Policy and Legislation Washington, D.C. 20530

February 15, 2023

The Honorable Carlton W. Reeves, Chair

United States Sentencing Commission

One Columbus Circle, NE

Suite 2-500, South Lobby

Washington, DC 20002-8002

Dear Judge Reeves:

On behalf of the U.S. Department of Justice, we submit the following views, comments,

and suggestions regarding the proposed amendments to the Federal Sentencing Guidelines and

issues for comment approved by the U.S. Sentencing Commission on January 12, 2023, and

published in the Federal Register on February 2, 2023.

This letter addresses the proposals and

issues for comment regarding First Step Act—Reduction in Term of Imprisonment Under 18

U.S.C. § 3582(c)(1)(A), Acquitted Conduct, and Sexual Abuse Offenses. We will submit a

second letter on the remaining matters before the Commission’s March meeting. This letter also

serves as the Department’s written testimony for the Commission’s upcoming hearing on

February 23, 2023.

We thank the members of the Commission and the staff for being responsive to the

sentencing priorities of the Department of Justice and to the needs and responsibilities, more

generally, of the Executive Branch. We look forward to working with you during the remainder

of the amendment year on all the published amendment proposals and to continued collaboration

in the years to come.

* * *

U.S. Sentencing Comm’n, Sentencing Guidelines for United States Courts, 88 Fed. Reg. 7180 (Feb. 2, 2023).

2. Department of Justice Comments on Proposed Amendments and Issues for

Comment on Acquitted Conduct

The Commission has proposed an amendment to the Guidelines limiting the use of

acquitted conduct in determining the Guidelines range. Consistent with federal statutes, the

proposal would continue to allow district courts to consider acquitted conduct when determining

where within the applicable Guidelines range to sentence a defendant and whether a departure

(or, a priori, a variance) is warranted. See 18 U.S.C. § 3661 (“[N]o limitation shall be placed on

the information concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the purpose of imposing

an appropriate sentence.”).

For the reasons set forth below, the Department does not believe the Commission can

practicably exclude acquitted conduct from the definition of relevant conduct. If the Commission

nonetheless proceeds with the amendment, the Department believes the definition of acquitted

conduct should be amended.

A. Background

The Supreme Court has long recognized judges’ broad discretion to impose sentences

based on facts found by a preponderance of the evidence at sentencing. See, e.g., United States v.

Watts, 519 U.S. 148, 157 (1997) (“a jury’s verdict of acquittal does not prevent the sentencing

court from considering conduct underlying the acquitted charge, so long as the conduct has been

proven by a preponderance”); Alleyne v. United States, 570 U.S. 99, 116 (2013) (“We have long

recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the

Sixth Amendment”). The Court in Watts reiterated its holding in Williams v. New York, that

“[h]ighly relevant—if not essential to [the judge’s] selection of an appropriate sentence is the

possession of the fullest information possible concerning the defendant’s life and characteristics”

and that “[n]either the broad language of section 3661 nor our holding in Williams suggests any

basis for the courts to invent a blanket prohibition against considering certain types of evidence

at sentencing.” Watts, 519 U.S. at 151-52 (quoting Williams, 337 U.S. 241, 247 (1949)).

* *

Since Watts, the Court has continued to affirm that there are no limitations on the

information concerning a defendant’s background, character, and conduct that courts may

consider in determining an appropriate sentence. Curtailing the consideration of acquitted

conduct at sentencing would be a significant departure from longstanding sentencing practice.

See Watts, 519 U.S. at 152 (noting that even “[u]nder the pre-Guidelines sentencing regime, it

was well established that a sentencing judge may take into account facts introduced at trial

relating to other charges, even ones of which the defendant has been acquitted”) (internal

citations omitted).

Section 3553(a) of Title 18, United States Code, meanwhile, requires judges to consider,

among other factors, “the nature and circumstances of the offense and the history and

characteristics of the defendant” in imposing a “sufficient, but not greater than necessary”

sentence. Congress recognized and codified the broad availability of information for judges in

imposing sentence in Section 3661, which directs that “no limitation shall be placed on the

information concerning the background, character, and conduct of a person convicted of an

offense which a court of the United States may receive and consider for the purpose of imposing

an appropriate sentence.”

B. The Commission’s Proposal Would Be Difficult for Courts to Administer

Consistent with Supreme Court precedent, the commentary to §1B1.3 currently provide

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 sentencing range.” Likewise, §6A1.3

specifies that “[i]n resolving any dispute concerning a factor important to the sentencing

determination, the court may consider relevant information without regard to its admissibility

under the rules of evidence applicable at trial, provided that the information has sufficient indicia

of reliability to support its probable accuracy.” Citing 18 U.S.C. § 3661 and the Court’s decision

in Watts, the commentary to that provision explains that “a preponderance of the evidence

standard is appropriate to meet due process requirements and policy concerns in resolving

disputes regarding application of the guidelines to the facts of a case.”

The Commission’s proposed amendment would make three changes to the Guidelines

and the commentary. It would –

• add a new subsection (c) to §1B1.3, in the Guidelines text, prohibiting consideration

of acquitted conduct as relevant conduct under §1B1.3 “unless such conduct was

admitted by the defendant or was found by the trier of fact beyond a reasonable doubt

to establish, in whole or in part, a violation of the instant offense of conviction”;

The Supreme Court has also recognized the constitutionality, under the advisory Guidelines regime, of judicial

factfinding within the prescribed statutory range established by the jury verdict. See, e.g., Alleyne v. United States,

570 U.S. 99, 116 (2013) (majority opinion) (“[B]road sentencing discretion, informed by judicial factfinding, does

not violate the Sixth Amendment.”); United States v. Booker, 543 U.S. 220, 233 (2005) (“[W]hen a trial judge

exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury

determination of the facts that the judge deems relevant.”); Apprendi v. New Jersey, 530 U.S. 466, 481 (2000)

(noting that nothing in the Court’s history suggests that it is “impermissible for judges to exercise discretion—taking

into consideration various factors relating to both offense and offender—in imposing a judgement within the range

prescribed by statute) (emphasis in the original); see also 18 U.S.C. § 3661.

• define acquitted conduct, in the Guidelines text, as, “conduct (i.e., any acts or

omission) underlying a charge of which the defendant has been acquitted by the trier

of fact or upon a motion of acquittal pursuant to Rule 29 of the Federal Rules of

Criminal Procedure or an analogous motion under the applicable law of a state, local,

or tribal jurisdiction”; and

• amend the commentary to §6A1.3 (Resolution of Disputed Factors), by adding that

“[a]cquitted conduct, however, generally, shall not be considered relevant conduct for

the purposes of determining the guideline range;” remove the reference to United

States v. Watts and edit other caselaw references; affirm the preponderance standard;

and affirm the use of acquitted conduct to determine “the sentence to impose within

the guideline range, or whether a departure from the guidelines is warranted. See

§1B1.4.”

The Department does not believe that the Commission can practicably prohibit the

consideration of acquitted conduct in determining the Guidelines range. Though well

intentioned, the Commission’s proposal will unduly restrict judicial factfinding, create

unnecessary confusion and litigation burdening the courts, and result in sentences that fail to

account for the full range of a defendant’s conduct.

As the Supreme Court recognized in Watts,

“an acquittal on criminal charges does not prove that the defendant is innocent; it merely proves

the existence of reasonable doubt as to his guilt.” Watts, 519 U.S. at 149. Jury verdicts reflect a

finding of whether the elements of a charge were established beyond a reasonable doubt but not

necessarily whether a defendant did or did not commit certain acts. Indeed, jury verdicts are

usually opaque. Because there is no administrable way to define “acquitted conduct,” the

Department fears that this provision will invite litigation on its application and inconsistency as

differing interpretations emerge.

As an initial matter, if adopted, the proposed definition of acquitted conduct would create

challenges in parsing the acts and omissions that can and cannot be considered by a sentencing

court. Defining acquitted conduct as conduct “underlying a charge of which the defendant has

been acquitted” will prove difficult to administer, especially for complex cases involving

overlapping charges, split or inconsistent verdicts, or acquittals based on technical elements

unrelated to a defendant’s innocence.

The Department is particularly concerned about cases in

which the charges are linked together, as in cases involving conspiracy, false statements, civil

rights, sexual abuse, and firearms charges.

More specifically, the Commission’s proposal fails to account for an acquittal unrelated

to the defendant’s innocence as to the conduct at issue—for example, an acquittal based on

failure of proof at trial on a technical element of the offense, including, but not limited to, venue,

Indeed, the Department has explained in litigation why the use of acquitted conduct at sentencing is

constitutionally sound, and why an alternative approach would “be unsound as a practical matter.” See Brief in

Opposition, McClinton v. United States, No. 21-1557 (October 28, 2022).

We appreciate the Commission’s inclusion of “a charge” to recognize that triers of fact decide charges, not

conduct, and we recognize that the phrase “underlying a charge” adopts the same language as used in Watts and

other cases. But those cases were broadly describing acquitted conduct, not distinguishing it from other relevant

conduct.

a jurisdictional element, or the conduct occurring outside the statute of limitations. These

circumstances often arise in civil rights cases, sexual misconduct cases, child exploitation cases,

and cases involving particularly vulnerable victims who may not report a crime until long after

the offense was committed. Under the current Guidelines, courts may treat the substantive

conduct underlying a charge for which the defendant was acquitted as relevant conduct as to

other offenses of conviction, so long as the court believes that evidence established by a

preponderance of the evidence. The court thus has discretion to consider conduct underlying an

acquittal that rested on technical grounds, while always retaining authority to disregard the

conduct if the evidence is insufficient or if the conduct was insufficiently related to the offense of

conviction. The Commission’s proposal would strip courts of that discretion, categorically

prohibiting courts from considering this conduct for purposes of determining the Guidelines

range.

The Commission’s proposal also fails to sufficiently address split or inconsistent verdicts

where the conduct underlying a count of acquittal is relevant conduct for a count of conviction

but does not necessarily satisfy the elements of the count of conviction. Often in civil rights

cases, juries may convict a defendant of an obstruction of justice offense, e.g., violations of 18

U.S.C. §§ 1001, 1512(b)(3), 1519, but acquit on the substantive civil rights offense. Under the

current regime, the substantive conduct would be appropriately considered relevant conduct if

the court finds it was proved by a preponderance of the evidence. Under the Commission’s

proposal, the substantive conduct would be excluded from consideration in determining the

Guidelines range because the elements of the substantive offense were not necessarily “found by

the trier of fact beyond a reasonable doubt; to establish, in whole or in part, the instant offense of

conviction,” i.e., obstruction of justice.

Finally, the Department does not believe that the Commission’s proposed exclusion of

conduct “admitted by the defendant or [that was] found by the trier of fact beyond a reasonable

doubt to establish, in whole or in part, a violation of the instant offense of conviction” adequately

addresses this concern. The Department appreciates this effort to address overlapping verdicts.

But this language will be difficult to administer, as the sentencing court is typically not the trier

of fact, and the proposal will require the sentencing court to make a factual finding about the

basis for a jury verdict. It is unclear how a court could make this inquiry because verdicts

generally only include findings on charges, not particular facts. Even if the sentencing court

could discern the jury’s factual finding with respect to certain conduct, it would need to make a

legal determination whether the conduct at issue “underl[ies] a charge of which the defendant has

been acquitted” or “establish[es], in whole or in part, the instant offense of conviction.” There is

ambiguity regarding what a court should do when the conduct falls in both of those boxes.

Ultimately, the Department worries that this difficult exercise will result in litigation regarding

what the trier of fact found proven beyond a reasonable doubt.

C. A Narrower Definition

Were the Commission to proceed with excluding acquitted conduct from relevant

conduct, the Department would recommend a narrower definition of acquitted conduct that

would include: (1) specific exceptions, and (2) clarify the definition to reduce administrability

concerns, while retaining the Commission’s proposed standard. Because some circuits have

questioned the authority and validity of certain provisions of the Sentencing Guidelines

commentary, the Department also recommends moving the commentary in §6A1.3 regarding the

permitted use of acquitted conduct to the text of §1B1.3.

While these changes will not fully resolve the Department’s administrability concerns,

changes to the definition of acquitted conduct would better account for overlapping, split, or

inconsistent verdicts. The Department’s recommended changes are underlined below.

1B1.3 Relevant Conduct (Factors that Determine the Guideline Range)

relevant conduct for the purposes of determining the guideline range. Acquitted

conduct may be considered in determining the sentence to impose within the

Guidelines range, or whether a departure or a variance from the Guidelines is

warranted. See §1B1.4 (Information to be Used in Imposing a Sentence (Selecting a

Point Within the Guideline Range or Departing from the Guidelines)).

(2) Definition of Acquitted Conduct. For the purposes of this guideline, “acquitted

conduct” means conduct (i.e., any acts or omissions) underlying the elements of a charge

of which the defendant has been acquitted by the trier of fact or upon a motion of

acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous

motion of acquittal under the applicable law of a state, local, or tribal jurisdiction, except

that it does not include any conduct (i.e., any acts or omissions):

A) admitted by the defendant or that underlies the elements of a charge of which the

defendant has been convicted, including lesser included offenses or related counts; or

B) that the trier of fact found the defendant committed beyond a reasonable doubt, as

established by a special verdict form or by a judge’s statement after a non-jury trial; or

C) underlying the elements of a charge for which the defendant was acquitted based on

the court’s determination, by a preponderance of evidence, that the defendant was

acquitted for a reason unrelated to his conduct, such as the government’s failure to

establish venue, prove a jurisdictional element, or overcome an affirmative defense based

on the statute of limitations.

The Department recommends changing the language to refocus the sentencing court’s

inquiry from what the trier of fact found to what the evidence at trial established.

• To account for split or inconsistent verdicts, the Department proposes amending the

definition of acquitted conduct to capture acts or omissions “underlying the elements

of a charge of which the defendant been acquitted,” while also proposing in

Subsection A an exception for conduct that “underlies the elements of a charge of

which the defendant has been convicted.” This proposal will help clarify that the

Commission’s proposal is not intended to prevent a sentencing court from

considering conduct underlying the elements of a charge for which the defendant was

convicted, and thus which a jury necessarily found beyond a reasonable doubt. The

Department also recommends moving the limitation proposed in (c)(1) to the

definition of acquitted conduct in (c)(2) for greater clarity.

• Subsection B accounts for cases where a special verdict form or a judge’s statement

after a non-jury trial reflects the trier of fact’s findings as to specific acts or

omissions.

• Subsection C accounts for circumstances in which the evidence at trial otherwise

establishes that the defendant committed the acts or omissions in question, but the

defendant was acquitted of a particular count because of a technical or non-

substantive limitation. This language would allow courts to consider conduct

underlying a count of acquittal when the court determines that the acquittal was

unrelated to the defendant’s factual innocence and instead was based on failure of

proof at trial on a technical element of the offense, including, but not limited to,

venue, a jurisdictional element, or the conduct occurring outside the statute of

limitations. Allowing for the consideration of conduct otherwise proven beyond a

reasonable doubt addresses cases involving particularly vulnerable victims who may

not report an offense until after the statute of limitations has run.

To ensure that limiting a sentencing court’s ability to consider acquitted conduct in

determining the Guidelines range does not unintentionally limit the ability of a victim to be

“reasonably heard” under 18 U.S.C. § 3771(a)(4) or unduly limit the court’s discretion to

consider any information concerning the conduct of a defendant, we recommend adding to the

commentary of §1B1.13 the following provision:

“Nothing in this section or in §1B1.4 shall limit the rights of a victim under 18 U.S.C.

§ 3771, or the court’s discretion to consider any information concerning the background,

character, and conduct of a defendant, including to hear from a person who at any time in

the prosecution was considered a victim under § 3771. See 18 U.S.C. § 3661.

* * *

Conclusion

We appreciate the opportunity to provide the Commission with our views, comments, and

suggestions. We very much look forward to continuing our work together. We continue to

believe that a strong, consistent, and balanced federal sentencing system is important to

improving public safety across the country and furthering justice.

Sincerely,

________________________________

Jonathan J. Wroblewski

Director, Office of Policy and Legislation

Criminal Division

U.S. Department of Justice

ex-officio Member, U.S. Sentencing Commission

cc: Commissioners

Kenneth Cohen, Staff Director

Kathleen Grilli, General Counsel