Dangerous Overreach: Why the Ninth Circuit’s Relevant Conduct Decision Violates Due Process

The Ninth Circuit's Expansion of Relevant Conduct: A Due Process Crisis in Federal Sentencing

In my 25 years as a federal prosecutor, I witnessed the Department of Justice wield the federal sentencing guidelines with surgical precision, but I never imagined I would see a federal appellate court bless a system where a defendant can be punished for crimes the government never charged and never proved beyond a reasonable doubt. The Ninth Circuit's recent line of decisions interpreting U.S.S.G. § 1B1.3 has done exactly that, creating a dangerous precedent that strips defendants of their most fundamental constitutional protections. The relevant conduct guideline, originally designed to allow courts to consider the "real offense" rather than just the charged offense, has metastasized into a tool that permits sentencing judges to impose decades of additional prison time based on evidence that would never survive a jury trial. When I served as a federal prosecutor, we understood that the grand jury indictment defined the scope of the case, and anything outside that indictment required separate charges and separate proof. The Ninth Circuit has now effectively told the government that it can skip the inconvenience of proving additional crimes to a jury and simply ask a sentencing judge to find those same facts by a preponderance of the evidence.

The constitutional infirmity here is not subtle—it is a direct assault on the Fifth Amendment's guarantee that no person shall be deprived of liberty without due process of law. The Supreme Court recognized in Apprendi v. New Jersey, 530 U.S. 466 (2000), 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 that effectively eviscerates Apprendi's holding, allowing judges to find facts that dramatically increase sentences without ever leaving the preponderance standard. This creates a two-tiered justice system where defendants who exercise their right to trial face exponentially higher sentences based on uncharged conduct, while those who plead guilty can often negotiate away these enhancements. The data from the United States Sentencing Commission confirms what defense attorneys have known for years: relevant conduct determinations are the single largest driver of sentence disparity in the federal system, and the Ninth Circuit's jurisprudence has made this disparity worse.

The practical effect of the Ninth Circuit's approach cannot be overstated. I have personally handled cases where a client charged with a single count of bank fraud under 18 U.S.C. § 1344 faced a sentencing range of 37 to 46 months based on the charged loss amount of $150,000. After the probation office conducted its own investigation and attributed additional "relevant conduct" from uncharged transactions, the loss amount ballooned to $1.2 million, and the guideline range skyrocketed to 121 to 151 months. The government never charged those additional transactions, never presented them to a grand jury, and never proved them beyond a reasonable doubt. Yet a single probation officer, relying on bank records and hearsay statements from cooperating witnesses, made findings that effectively added seven years to my client's potential sentence. This is not justice—it is administrative sentencing by bureaucratic fiat, and the Ninth Circuit has given it judicial approval.

The Preponderance Standard in Sentencing: How the Ninth Circuit Rewrote the Rules of Evidence and Burden of Proof

The fundamental problem with the Ninth Circuit's relevant conduct jurisprudence is its unwavering commitment to the preponderance of the evidence standard for facts that can multiply a defendant's sentence several times over. Federal Rule of Criminal Procedure 32(i)(3) requires sentencing courts to resolve disputed factual matters, but it says nothing about the applicable burden of proof—a gap the Ninth Circuit has filled with the lowest evidentiary standard in American law. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a sentencing court may consider conduct of which a defendant was acquitted, so long as the government proves that conduct by a preponderance of the evidence. The Ninth Circuit has taken this holding and run with it, applying the preponderance standard not just to acquitted conduct but to entirely uncharged conduct spanning different victims, different time periods, and different criminal schemes. This creates a legal fiction where a jury's acquittal on a charge means nothing at sentencing, and where the government can effectively retry a defendant without any of the procedural protections that define a criminal trial.

The constitutional problem becomes even more acute when we examine how the Ninth Circuit treats hearsay evidence in relevant conduct determinations. The Federal Rules of Evidence do not apply at sentencing under Rule 1101(d)(3), which means probation officers and prosecutors can introduce police reports, witness statements, and even uncorroborated informant testimony without any opportunity for cross-examination. In my experience, these hearsay statements are often the sole basis for dramatic sentencing enhancements, and defendants have no meaningful way to challenge them. The Confrontation Clause of the Sixth Amendment, which guarantees the right to confront adverse witnesses, has been held inapplicable to sentencing proceedings by the Supreme Court in Williams v. New York, 337 U.S. 241 (1949). The Ninth Circuit has extended this reasoning to its logical extreme, allowing sentencing courts to rely on virtually any information that has "sufficient indicia of reliability," a standard so vague that it provides no meaningful protection for defendants facing decades in prison.

The practical implications of this evidentiary free-for-all are devastating for defendants who maintain their innocence or who choose to exercise their right to trial. When I represent clients who have been acquitted on some counts but convicted on others, I know that the acquittal provides no protection at sentencing. The government can simply re-present the same evidence to the sentencing judge, argue that the preponderance standard is met, and obtain a sentence that effectively punishes the defendant for the very crimes the jury said they did not commit. This creates a perverse incentive structure where defendants who plead guilty and waive their appellate rights can often negotiate a plea agreement that limits relevant conduct exposure, while those who insist on their constitutional right to trial face the full force of the government's uncharged conduct allegations. The Ninth Circuit has created a system that punishes the exercise of constitutional rights, and that alone should be enough to trigger the most searching constitutional scrutiny.

The Sentencing Commission's Data and the Ninth Circuit's Disregard for Proportionality Under the Eighth Amendment

The United States Sentencing Commission's own data reveals the alarming scope of this problem. According to the Commission's 2023 Annual Report, relevant conduct adjustments under U.S.S.G. § 1B1.3 were applied in over 35% of all federal sentencing cases, and in fraud cases specifically, the average loss amount attributed through relevant conduct was more than triple the charged loss amount. The Eighth Amendment's prohibition on cruel and unusual punishment requires sentences to be proportionate to the offense of conviction, but the Ninth Circuit's approach allows sentences to be based on conduct that bears no relationship to the crime for which the defendant was actually convicted. In one case I handled, my client was convicted of a single count of making a false statement to a federal agent under 18 U.S.C. § 1001, which carries a statutory maximum of five years. The government attributed over $2 million in relevant conduct from an entirely separate business venture that was never charged, never investigated by the grand jury, and never proved to any factfinder. My client received a sentence of 78 months—nearly a third longer than the statutory maximum for the offense of conviction—all based on conduct that was never charged.

The Ninth Circuit's jurisprudence also creates a fundamental unfairness in how relevant conduct is applied across different judicial districts. I have seen cases where the same conduct attributed to a defendant would be treated as a separate offense in one district and as relevant conduct in another, leading to wildly disparate sentences for identically situated defendants. The Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3553, was designed to eliminate unwarranted sentencing disparities, but the Ninth Circuit's approach to relevant conduct has reintroduced disparity on a massive scale. The Department of Justice's own internal guidelines, set forth in the Justice Manual at Section 9-27.300, instruct prosecutors to charge defendants with the most serious offenses that can be proved beyond a reasonable doubt. Yet the Ninth Circuit has effectively told prosecutors that they can charge minor offenses and then use relevant conduct to achieve sentences that far exceed what the charged conduct would warrant. This undermines the entire structure of the federal criminal code, which establishes statutory maximums based on the specific elements of each offense.

The due process violation is compounded by the fact that defendants often have no meaningful notice of the relevant conduct allegations until the presentence report is disclosed, typically just weeks before sentencing. Federal Rule of Criminal Procedure 32(e)(2) requires the probation office to disclose the presentence report to the parties at least 35 days before sentencing, but this is often the first time defendants learn the full scope of the allegations against them. Unlike an indictment, which must be returned by a grand jury and must include specific factual allegations, the presentence report is prepared by a probation officer who acts as investigator, prosecutor, and factfinder all in one. The officer's findings are entitled to a presumption of regularity, and defendants bear the burden of proving that the officer's conclusions are incorrect. This reversal of the burden of proof—where the government must prove nothing and the defendant must disprove everything—is antithetical to the most basic principles of due process that have governed American criminal justice since the founding of the Republic.

Practical Strategies for Challenging Unconstitutional Relevant Conduct Determinations

Given the current state of Ninth Circuit law, defense attorneys must adopt aggressive and creative strategies to protect their clients from unconstitutional relevant conduct determinations. The first and most critical step is to demand that the government provide specific notice of any relevant conduct it intends to prove at sentencing, and to insist that this notice be provided at least 60 days before sentencing to allow for adequate preparation. While the Federal Rules of Criminal Procedure do not require such notice, the Due Process Clause requires fundamental fairness, and courts have inherent authority to manage their dockets. I routinely file motions for a bill of particulars regarding relevant conduct, citing the Fifth Amendment's guarantee of due process and the need for adequate notice to prepare a defense. These motions often succeed because judges recognize that a defendant cannot contest allegations that are disclosed for the first time in a presentence report prepared by a non-adversarial probation officer.

Second, defense counsel must aggressively challenge the reliability of the evidence that the government intends to use to prove relevant conduct. While the Federal Rules of Evidence do not apply at sentencing, the Supreme Court has held that sentencing courts may only consider information with "sufficient indicia of reliability." I file motions in limine to exclude hearsay statements that lack corroboration, unsworn witness statements, and evidence obtained from sources with demonstrated bias or motive to fabricate. In one recent case, I successfully excluded a cooperating witness's testimony about uncharged conduct because the witness had a documented history of providing false information to law enforcement and had never been subject to cross-examination. The sentencing judge agreed that the statements lacked sufficient indicia of reliability and declined to attribute the relevant conduct to my client. This victory was possible only because we filed detailed objections and demanded an evidentiary hearing under Rule 32(i)(1)(C), which requires the court to resolve disputed factual issues.

Third, and most importantly, defense attorneys must preserve every objection to relevant conduct determinations for appellate review, even when the current law seems unfavorable. The Ninth Circuit has shown some willingness to reconsider its jurisprudence in light of intervening Supreme Court decisions, particularly in cases where the relevant conduct enhancement results in a sentence that exceeds the statutory maximum for the offense of conviction. I recommend filing written objections to every relevant conduct finding, citing Apprendi v. New Jersey, Blakely v. Washington, 542 U.S. 296 (2004), and Alleyne v. United States, 570 U.S. 99 (2013), which together establish that any fact that increases the mandatory minimum or statutory maximum must be proved to a jury beyond a reasonable doubt. While the Ninth Circuit has not yet extended these cases to relevant conduct determinations, the Supreme Court has shown increasing skepticism of judicial factfinding at sentencing, and a well-preserved objection today could be the basis for a successful appeal tomorrow. The plain error standard of review under Federal Rule of Criminal Procedure 52(b) is extraordinarily difficult to satisfy, but it is impossible to satisfy if no objection was made in the first place.

Frequently Asked Questions About Relevant Conduct and Due Process

Q: Can a federal judge sentence me based on conduct for which I was acquitted at trial?

Yes, under current Ninth Circuit law and the Supreme Court's holding in United States v. Watts, 519 U.S. 148 (1997), a sentencing judge may consider acquitted conduct if the government proves that conduct by a preponderance of the evidence. This means that even if a jury found you not guilty of a particular charge, the judge can still use the facts underlying that charge to increase your sentence. The only limitation is that the evidence must have "sufficient indicia of reliability," which is a very low standard. This creates the perverse result where an acquittal provides no protection at sentencing, and defendants can be punished for crimes the jury said they did not commit. Your defense attorney must object to this practice on constitutional grounds and preserve the issue for appeal, as the Supreme Court may ultimately reconsider Watts in light of its more recent Apprendi-line decisions.

Q: What is the difference between the preponderance standard and beyond a reasonable doubt, and why does it matter for sentencing?

The preponderance of the evidence standard requires the government to prove that something is "more likely true than not," which means a mere 50.1% probability is sufficient. Beyond a reasonable doubt requires proof that leaves you firmly convinced of the defendant's guilt, which is the highest standard in American law. In the context of relevant conduct, this means the government can dramatically increase your sentence based on evidence that would never be sufficient to convict you of a crime. For example, if the government alleges you committed $500,000 in uncharged fraud, it only needs to show that it's slightly more likely than not that you did so—hearsay statements, unreliable witnesses, and uncorroborated documents can all satisfy this standard. At trial, the government would need to prove every element of that fraud beyond a reasonable doubt, with admissible evidence and the right to cross-examination. The difference between these standards is the difference between a system that protects the innocent and one that punishes based on suspicion and inference.

Conclusion: Protecting Your Rights Against Unconstitutional Sentencing Practices

If you or a loved one is facing federal sentencing in the Ninth Circuit, you cannot afford to assume that the system will protect your rights. The relevant conduct guidelines, as interpreted by the Ninth Circuit, have created a parallel justice system where defendants can be punished for conduct that was never charged, never proved to a jury, and never subjected to meaningful adversarial testing. I have spent 25 years navigating this system—first as a federal prosecutor who saw how easy it was to inflate sentences through relevant conduct allegations, and now as a defense attorney fighting to hold the government to its constitutional obligations. The strategies I have outlined in this article are not theoretical; they are battle-tested approaches that have saved clients years of incarceration. Do not wait until the presentence report is filed to start preparing your defense. Contact our firm today for a confidential consultation, and let us put our decades of experience to work protecting your freedom. The government has vast resources and an army of prosecutors—you deserve a defense team that knows how to fight back against unconstitutional sentencing practices and will not stop until your rights are fully protected.