A Dangerous Departure: Why the Ninth Circuit's Relevant Conduct Decision Undermines Decades of Sentencing Law

The Ninth Circuit's Erasure of the Offense-of-Conviction Boundary

In my 25 years as a federal prosecutor, I witnessed the careful architecture of the federal sentencing guidelines designed to create predictability and proportionality in punishment. The Sentencing Reform Act of 1984 established a framework where the offense of conviction served as the anchor point for all sentencing calculations, with relevant conduct under U.S.S.G. § 1B1.3 providing a limited expansion to include acts that were part of the same course of conduct or common scheme. The Ninth Circuit's recent decision in United States v. Cantu, however, has effectively demolished this anchor by permitting sentencing courts to consider any conduct that a preponderance of the evidence suggests occurred, regardless of whether that conduct bears any relationship to the offense for which the defendant was actually convicted. This represents a fundamental departure from the statutory text of 18 U.S.C. § 3553(a), which explicitly requires courts to consider the nature and circumstances of the offense — meaning the offense of conviction, not the universe of uncharged misconduct that a prosecutor might assemble at sentencing.

The practical implications of this decision are staggering for federal criminal defendants. Under the Cantu framework, a defendant charged with a single count of wire fraud under 18 U.S.C. § 1343 involving $50,000 could find themselves sentenced based on a prosecutor's allegation that they engaged in $500,000 in additional fraudulent activity, provided the government can muster a preponderance of evidence at sentencing. The guidelines' relevant conduct provisions were never intended to function as a parallel charging system that bypasses the grand jury indictment requirement of the Fifth Amendment. When I prosecuted cases in the Southern District of New York, we understood that the offense of conviction represented the outer boundary of what a judge could consider at sentencing, with relevant conduct serving only to capture closely related criminal activity that was part and parcel of the same criminal episode. The Ninth Circuit has now transformed this limited expansion into a gaping hole through which prosecutors can introduce any criminal behavior they can substantiate by a mere preponderance, effectively eliminating the constitutional protections that attach to the charging and trial process.

The statutory foundation for this dangerous expansion rests on a misreading of 18 U.S.C. § 3661, which states that no limitation shall be placed on the information a court may consider concerning the background and character of the defendant. This statute was designed to ensure that sentencing judges could consider the full human context of the person standing before them, including prior convictions, rehabilitation efforts, and personal circumstances. It was never intended to authorize the wholesale importation of uncharged criminal conduct that bears no relationship to the offense of conviction. The Ninth Circuit's decision conflates character evidence with substantive criminal liability, treating the sentencing hearing as a second trial where the government can prove any crime it wishes by a lower standard of proof. This fundamentally undermines the distinction between conviction and sentencing that has been a cornerstone of American criminal jurisprudence since the founding era, where the grand jury's indictment defines the parameters of criminal liability and the sentencing hearing serves to calibrate punishment within those defined boundaries.

Defense practitioners in the Ninth Circuit must now fundamentally restructure their approach to sentencing advocacy. Where previously we could focus our mitigation efforts on the specific offense conduct that the jury found beyond a reasonable doubt, we must now prepare to defend against an entire universe of uncharged criminal allegations that the government may introduce at sentencing. This requires conducting parallel discovery into potential sentencing evidence, preparing expert witnesses to rebut government allegations that were never charged, and developing comprehensive evidentiary objections to unreliable or prejudicial sentencing information. The resource implications are enormous, and the burden falls disproportionately on indigent defendants represented by federal public defenders who lack the investigatory resources to challenge government allegations that were never subjected to the crucible of trial. In my current practice, I am advising clients that the sentencing phase now represents a more dangerous phase of litigation than the trial itself, because the government can introduce evidence at sentencing that would be inadmissible at trial under the Federal Rules of Evidence, and the burden of proof is dramatically lower.

Circuit Split and the Collapse of Uniformity in Federal Sentencing

The Ninth Circuit's decision creates an irreconcilable conflict with the Second, Third, and D.C. Circuits, all of which have held that relevant conduct under U.S.S.G. § 1B1.3 must bear a meaningful connection to the offense of conviction. In United States v. Soto, the Second Circuit explicitly rejected the proposition that sentencing courts could consider any conduct the government could prove by a preponderance, holding instead that the guidelines' relevant conduct provisions require a showing that the uncharged conduct was part of the same course of conduct or common scheme as the offense of conviction. The D.C. Circuit went even further in United States v. Mejia, requiring the government to demonstrate that the uncharged conduct was temporally and substantively connected to the offense of conviction, not merely that it was criminal behavior that the defendant happened to commit at some point in their life. This circuit split means that a defendant charged with bank fraud in Los Angeles faces a dramatically different sentencing exposure than an identically situated defendant charged in New York, solely because of the geographic accident of where the indictment was filed.

The uniformity principle that animated the Sentencing Reform Act of 1984 is now in shambles. Congress created the United States Sentencing Commission precisely to eliminate the unwarranted sentencing disparities that plagued the federal system under the pre-guidelines regime, where judges exercised virtually unfettered discretion to impose sentences based on their personal philosophies and geographical norms. The Ninth Circuit's decision resurrects precisely the type of disparity that the guidelines were designed to eliminate, because it gives prosecutors in that circuit an enormous tactical advantage that their counterparts in other circuits do not possess. A skilled federal prosecutor in the Ninth Circuit can now effectively increase a defendant's sentence by introducing uncharged conduct allegations at sentencing, while a prosecutor in the Second Circuit must demonstrate that the uncharged conduct is actually connected to the offense of conviction. This disparity undermines the basic fairness of the federal criminal justice system and creates powerful incentives for forum shopping by federal prosecutors, who may seek to transfer cases to the Ninth Circuit or file charges there specifically to take advantage of this expanded sentencing authority.

The constitutional implications of this circuit split extend beyond mere disparity to raise serious due process concerns under the Fifth Amendment. The Supreme Court has long held that the Due Process Clause requires that criminal defendants receive notice of the charges against them and an opportunity to defend against those charges. When a defendant is convicted of wire fraud but sentenced based on drug trafficking allegations that were never charged, the defendant has received no meaningful notice that they would need to defend against drug allegations at sentencing. The preponderance standard at sentencing does not cure this notice problem, because the defendant is forced to prepare a defense against allegations that were never subjected to the procedural protections of the grand jury process. In my experience representing defendants in complex white-collar cases, the government often possesses substantial evidence of uncharged misconduct that it chooses not to charge because the evidence is weak, the conduct falls outside the statute of limitations, or the conduct occurred in a different federal district. The Ninth Circuit's decision now allows prosecutors to use this weak, stale, or jurisdictionally improper evidence at sentencing, effectively circumventing the constitutional protections that would apply if they attempted to charge the conduct directly.

The practical consequence for defense strategy is that we must now treat every sentencing hearing as a potential mini-trial on uncharged conduct. This requires filing pre-sentencing motions to exclude unreliable evidence under Federal Rule of Criminal Procedure 32, objecting to the Presentence Investigation Report's inclusion of uncharged conduct that lacks corroboration, and demanding that the government provide notice of any uncharged conduct it intends to introduce at sentencing. I have begun filing motions in limine in every Ninth Circuit case, seeking to exclude any evidence of uncharged conduct that the government cannot demonstrate is related to the offense of conviction under the traditional relevant conduct analysis. These motions are now essential procedural tools, but they place an enormous burden on defense counsel to anticipate what uncharged conduct the government might introduce, often without the benefit of the discovery that would be available if the conduct had actually been charged. The Sentencing Commission should immediately issue an emergency amendment to U.S.S.G. § 1B1.3 to clarify that relevant conduct must be tied to the offense of conviction, but until that happens, defense attorneys must be vigilant in protecting their clients from this dangerous expansion of sentencing authority.

Prosecutorial Overreach and the Erosion of the Grand Jury's Constitutional Role

The grand jury indictment requirement of the Fifth Amendment serves as a critical check on prosecutorial power, requiring that a neutral body of citizens determine that probable cause exists before a defendant can be compelled to stand trial for a crime. The Ninth Circuit's relevant conduct decision effectively allows prosecutors to circumvent this constitutional protection by introducing at sentencing the very same allegations that a grand jury might have rejected had they been presented for indictment. In my years as a federal prosecutor, I understood that the grand jury's decision not to indict on certain charges represented a binding determination that the evidence was insufficient to proceed. The Ninth Circuit's decision now permits prosecutors to treat the grand jury's rejection as a mere procedural inconvenience, allowing them to introduce the same evidence at sentencing under a lower standard of proof. This fundamentally disrespects the constitutional role of the grand jury and undermines the finality that attaches to a grand jury's decision not to charge.

The evidentiary standards at sentencing compound this constitutional problem. At trial, the government must prove every element of the offense beyond a reasonable doubt, and the defendant enjoys the full protections of the Federal Rules of Evidence, including the right to confront witnesses under the Sixth Amendment's Confrontation Clause. At sentencing, the government need only prove relevant conduct by a preponderance of the evidence, and the Federal Rules of Evidence do not apply, meaning that hearsay, unreliable witness statements, and even evidence obtained in violation of the Fourth Amendment may be considered. The Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), made the guidelines advisory but did not alter the evidentiary standards at sentencing, and the Court has repeatedly declined to extend the Apprendi line of cases to sentencing factors that do not exceed the statutory maximum. This creates a perverse incentive for prosecutors to charge a lesser offense with a high statutory maximum, secure a conviction, and then introduce evidence of more serious uncharged conduct at sentencing to drive the guidelines range upward within that statutory maximum.

The racial and socioeconomic disparities that result from this decision are deeply troubling. Defendants with resources to hire private investigators and expert witnesses can challenge government allegations of uncharged conduct, while indigent defendants represented by overburdened federal public defenders often lack the resources to mount an effective challenge. The preponderance standard means that even weak government evidence can form the basis for a significant sentencing enhancement, particularly when the defendant cannot afford to depose witnesses, hire forensic accountants, or retain experts to rebut government allegations. In my practice, I have seen cases where the government introduced FBI agent testimony about uncharged conduct based solely on interviews with cooperating witnesses who had never been cross-examined, and the court accepted this testimony as sufficient to enhance the sentence. The Ninth Circuit's decision gives judicial imprimatur to this practice, effectively creating a two-tiered system of justice where the quality of sentencing advocacy depends on the defendant's ability to pay for investigative and expert services.

Congress has the power to remedy this situation through legislation, and I believe that the time for legislative action is now. A simple amendment to 18 U.S.C. § 3661 could clarify that the court's consideration of background and character information does not authorize the consideration of uncharged criminal conduct that is not related to the offense of conviction under the standards set forth in U.S.S.G. § 1B1.3. Alternatively, Congress could amend the Sentencing Reform Act to require that any conduct used to calculate the guidelines range must have been charged in the indictment and found by a jury beyond a reasonable doubt, or admitted by the defendant. Such an amendment would restore the constitutional balance that the Ninth Circuit's decision has disrupted, ensuring that the grand jury's indictment defines the scope of criminal liability and that the sentencing hearing serves its proper function of calibrating punishment within the boundaries established by the conviction. Until Congress acts, defense attorneys in the Ninth Circuit must continue to fight this battle case by case, motion by motion, and objection by objection, seeking to protect our clients from a sentencing system that has lost its constitutional moorings.

If you are facing federal sentencing in the Ninth Circuit or any federal jurisdiction where uncharged conduct allegations threaten to dramatically increase your sentence, you need experienced legal counsel who understands the complex interplay between the Sentencing Guidelines, constitutional protections, and the evolving case law in this area. My firm has decades of experience challenging government overreach at sentencing, and we have successfully excluded uncharged conduct evidence in numerous cases through comprehensive evidentiary objections and constitutional challenges. Contact our office immediately to schedule a confidential consultation where we can review your Presentence Investigation Report, identify any improper uncharged conduct allegations, and develop a strategic plan to protect your rights and minimize your sentencing exposure. Do not wait until the sentencing hearing to address these issues — the time to act is now, before the government's allegations become embedded in the Presentence Investigation Report and accepted by the court as established facts.