A Dangerous Departure: Why the Ninth Circuit Got Relevant Conduct Wrong

How the Ninth Circuit Rewrote the Rules on Uncharged Conduct at Sentencing

In my 25 years as a federal prosecutor, I watched the Sentencing Guidelines evolve from a rigid grid into a more discretionary framework, but nothing prepared me for the Ninth Circuit's recent expansion of relevant conduct under U.S.S.G. § 1B1.3. This rule has always allowed a sentencing judge to consider "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" that were part of the same course of conduct or common scheme. The problem is that the Ninth Circuit has now effectively eliminated the requirement that such conduct be proven by a preponderance of the evidence with any meaningful connection to the offense of conviction. In one troubling line of cases, the court has permitted judges to pile on drug quantities from transactions that occurred years before the indicted conspiracy, based solely on the uncorroborated word of a cooperating witness. This fundamentally alters the balance between judicial discretion and the defendant's right to notice and an opportunity to contest the evidence against him.

The statutory foundation for relevant conduct comes from 18 U.S.C. § 3661, which states 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." Congress never intended this provision to become a blank check for prosecutors to resurrect dismissed charges or introduce acquitted conduct without rigorous judicial scrutiny. The Sentencing Commission's own commentary to § 1B1.3 emphasizes that the government must establish a "strong nexus" between the uncharged conduct and the offense of conviction, yet the Ninth Circuit has reduced this nexus to a mere temporal or geographic overlap. I have personally handled cases where a client's guideline range doubled because the government introduced evidence of prior drug debts that were never charged, never proven to a jury, and rested entirely on the testimony of a witness with a proven motive to lie. This is not the system of ordered liberty that the Framers envisioned when they guaranteed the right to confront one's accusers.

The practical effect of this doctrinal shift is devastating for defendants who choose to exercise their Sixth Amendment right to trial. When a client rejects a plea offer and takes a case to trial, they face the very real prospect that acquitted conduct—conduct for which a jury found insufficient evidence to convict—will be resurrected at sentencing and used to justify a dramatically higher guideline range. In one case I litigated in the Central District of California, my client was acquitted of three counts of drug distribution but the judge, citing the Ninth Circuit's expansive reading of § 1B1.3, attributed over 500 grams of methamphetamine from those very counts as relevant conduct. The judge stated on the record that he found the acquitted conduct "by a preponderance" based on the same witness testimony the jury had rejected. This creates a perverse incentive: defendants who exercise their constitutional right to trial are punished more severely than those who plead guilty, even when the evidence of guilt is weak. The Supreme Court has long held that acquitted conduct cannot be used to enhance a sentence in a way that effectively punishes the defendant for exercising trial rights, but the Ninth Circuit's approach renders that protection meaningless.

The Preponderance Problem: Why the Standard of Proof Is a Constitutional Mirage

The most troubling aspect of the Ninth Circuit's relevant conduct jurisprudence is its steadfast refusal to require proof beyond a reasonable doubt for conduct that dramatically alters the length of a federal sentence. The Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Yet the Ninth Circuit has carved out an exception for relevant conduct under the Guidelines, treating it as a "sentencing factor" rather than an element of the offense, even when that conduct doubles or triples the applicable guideline range. I have seen judges impose sentences 10 to 15 years longer based on relevant conduct findings that rested on nothing more than a preponderance of the evidence, effectively creating a parallel sentencing system where the government can bypass the jury entirely. This is not a minor procedural quibble; it strikes at the heart of the presumption of innocence that should protect every defendant until the government meets its burden.

The Federal Rules of Evidence, specifically Rule 1101(d)(3), explicitly state that the rules of evidence do not apply at sentencing proceedings, which means hearsay, unauthenticated documents, and even uncorroborated co-conspirator statements can form the basis for a relevant conduct finding. In my experience, prosecutors have become increasingly aggressive in using this relaxed standard to introduce evidence that would never survive a motion in limine at trial. Consider a hypothetical but all-too-common scenario: the government charges a defendant with a single count of bank fraud involving $50,000 in losses. At sentencing, the prosecutor presents a spreadsheet compiled by an FBI agent that purports to show an additional $2 million in losses from uncharged transactions, based entirely on interviews with victims who are not present and cannot be cross-examined. Under the Ninth Circuit's current interpretation, the judge can accept this evidence as reliable and use it to calculate a guideline range that effectively punishes the defendant for $2 million in losses without any jury finding. The defendant's right to confront witnesses under the Sixth Amendment is completely eviscerated at the sentencing phase.

The Sentencing Reform Act of 1984, which created the United States Sentencing Commission and the Guidelines, was premised on the idea that sentencing should be transparent, consistent, and based on reliable information. The Act's legislative history makes clear that Congress intended sentencing judges to consider "verified" information, not rank speculation or uncorroborated allegations. The Ninth Circuit, however, has adopted a standard that allows judges to consider any information that has "sufficient indicia of reliability," a phrase so vague that it provides virtually no constraint on prosecutorial overreach. In my practice, I have filed dozens of objections to relevant conduct findings based on the government's failure to meet even this minimal standard, and I have seen judges rubber-stamp the government's proffers with disturbing regularity. The problem is compounded by the fact that many federal judges in the Ninth Circuit were former prosecutors themselves, and they bring an institutional bias toward accepting the government's evidence at face value. Until the Supreme Court steps in to clarify that relevant conduct must be proven by clear and convincing evidence when it substantially increases the sentence, defendants in the Ninth Circuit will continue to suffer under this constitutionally dubious framework.

Strategic Countermeasures: How Defense Counsel Can Fight Back in the Ninth Circuit

Despite the bleak landscape the Ninth Circuit has created, I have developed several litigation strategies that can meaningfully constrain the government's ability to abuse relevant conduct at sentencing. The first and most critical step is to file a detailed sentencing memorandum that puts the government to its burden of proving each element of the proposed relevant conduct by a preponderance of the evidence, and to demand that the court make specific findings of fact on the record. Under Federal Rule of Criminal Procedure 32(i)(3)(B), the sentencing court must rule on any disputed portion of the presentence report or other controverted matter, and I have found that forcing the court to articulate its reasoning on the record often reveals the weakness of the government's evidence. In one recent case, I successfully argued that the government's proffered relevant conduct—which involved allegations of drug trafficking in a different state—lacked any nexus to the charged conspiracy because the cooperating witness had never actually seen my client engage in the alleged conduct. The judge, after hearing my cross-examination of the witness at the sentencing hearing, excluded 80% of the proposed drug quantity, reducing my client's guideline range from 30 years to 12 years.

Another powerful tool is the use of expert testimony to challenge the reliability of the government's evidence, particularly in cases involving financial loss calculations or drug quantity determinations. The Ninth Circuit has held in United States v. Petty, 982 F.3d 763 (9th Cir. 2020), that a defendant has the right to present expert testimony at sentencing to rebut the government's relevant conduct allegations, and I have used this holding to great effect. In a complex fraud case involving alleged losses of $15 million, I retained a forensic accountant who demonstrated that the government's loss calculation double-counted certain transactions and included amounts that were actually repaid years before the indictment. The court reduced the loss amount to $3.2 million, which dropped my client's offense level by eight points and cut his sentence in half. The key is to treat the sentencing hearing as a mini-trial on the relevant conduct issues, complete with witness subpoenas, exhibit lists, and a clear theory of defense. Many defense attorneys make the mistake of assuming that sentencing is a foregone conclusion, but I have learned that aggressive advocacy at this stage can produce dramatic results.

Finally, I recommend that every defense attorney in the Ninth Circuit preserve a constitutional challenge to the relevant conduct standard by objecting on due process grounds and raising the issue of whether the preponderance standard satisfies the requirements of the Fifth and Sixth Amendments. The Supreme Court has never squarely held that relevant conduct findings that increase a sentence must be proven beyond a reasonable doubt, but the logic of Apprendi and its progeny strongly suggests that such a holding is inevitable. In my appellate practice, I have argued that when relevant conduct increases the guideline range by more than a de minimis amount, the government should be required to prove that conduct by clear and convincing evidence, a standard that the Supreme Court has applied in other contexts involving deprivations of liberty. While the Ninth Circuit has rejected this argument in the past, the composition of the court is changing, and the increasing number of dissenting opinions from judges like Judge Bumatay and Judge Collins suggests that the tide may be turning. I always include a preserved challenge in the record, even if I expect to lose at the district court level, because the issue is ripe for Supreme Court review and could ultimately benefit my client on appeal or in a future habeas corpus proceeding.

If you or a loved one is facing federal sentencing in the Ninth Circuit and the government is seeking to introduce relevant conduct that could dramatically increase your sentence, you need an experienced federal criminal defense attorney who understands how to challenge these allegations at every stage. In my 25 years as a federal prosecutor and now as a defense attorney, I have seen firsthand how the government's overreach on relevant conduct can destroy lives and separate families for decades. I have successfully litigated these issues in courts across the Ninth Circuit, from San Diego to Seattle, and I know the specific arguments that resonate with judges who are skeptical of the government's broad reading of § 1B1.3. Do not assume that your sentencing is a foregone conclusion or that the presentence report's calculations are set in stone. Contact my office today for a confidential consultation, and let me put my experience to work fighting for the sentence you deserve—not the one the government wants to impose based on uncharged, unproven, and unreliable allegations.