In 1997, the Supreme Court of the United States decided the case of United States v. Watts. The police in Watts discovered cocaine and guns in the defendant’s house. At trial, Watts was convicted of possessing cocaine, but acquitted of using a firearm in relation to a drug offense.

Despite his acquittal on the gun charges, at sentencing, the court increased his offense level under the federal Sentencing Guidelines after finding, by a preponderance of the evidence, that he possessed the guns in connection with the gun offense.

The Ninth Circuit Court of Appeals vacated Watts’ sentence, holding that a sentencing court may not rely on facts of which the defendant was acquitted. The Supreme Court reversed in a per curiam opinion, holding that the sentencing court may consider conduct of which the defendant was acquitted, so long as the conduct has been proved by a preponderance of evidence.

Both Justice Stevens and Justice Kennedy dissented, with the latter noting that “to increase a sentence based on conduct underlying a charge for which the defendant was acquitted does raise concerns about undercutting the verdict of acquittal.”

Since the Supreme Court’s decision in Watts, district courts around the country regularly take into account acquitted conduct when sentencing defendants.

That may change soon. On April 17, 2024, the United States Sentencing Commission voted unanimously to pass certain amendments to the federal Sentencing Guidelines, including limiting the use of acquitted conduct. Specifically, the proposed amendment would amend the Guidelines to provide that relevant conduct does not include conduct for 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.”

In passing the proposed amendment, Sentencing Commission Chair Judge Carlton Reeves stated: “Not guilty means not guilty. By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

The proposed amendment will take effect on November 1, 2024, unless Congress disapproves of the changes.

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