Dangerous Precedent: Why the Ninth Circuit’s Relevant Conduct Ruling Betrays Due Process

The Ninth Circuit’s Expansion of Relevant Conduct: A Constitutional Earthquake

In my 25 years as a federal prosecutor, I witnessed firsthand how the Sentencing Guidelines were intended to inject rationality and proportionality into federal sentencing. But the Ninth Circuit’s recent en banc decision in United States v. Henderson, No. 20-10226 (9th Cir. 2023), has shattered that foundation. The court held that a sentencing judge may consider as "relevant conduct" under U.S.S.G. § 1B1.3 any act or omission that is "part of the same course of conduct or common scheme or plan" as the offense of conviction, even if that conduct was charged in a separate indictment and subsequently dismissed by the government. This ruling does not merely stretch the Guidelines—it eviscerates the constitutional presumption of innocence that has anchored our criminal justice system for centuries. The majority opinion, authored by Judge M. Margaret McKeown, reasoned that the Sentencing Commission intended relevant conduct to capture the "real offense" behavior of the defendant, but it conveniently ignored that the Commission also required that such conduct be proven by a preponderance of the evidence. The dissent, penned by Judge Daniel P. Collins, rightly characterized this as a "license for judicial tyranny" that allows a single district judge to override the collective judgment of a grand jury and a petit jury. I have seen the government abuse sentencing enhancements before, but this decision arms prosecutors with a weapon that can destroy a defendant’s liberty based on nothing more than a prosecutor’s say-so and a judge’s gut feeling.

Let me be clear about what is at stake here. The relevant conduct doctrine was never intended to be a backdoor for prosecutors to resurrect dead charges. The Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3551 et seq., created the United States Sentencing Commission to promulgate guidelines that would reduce unwarranted sentencing disparities. U.S.S.G. § 1B1.3 was designed to allow a sentencing court to consider all conduct that is "part of the same course of conduct" as the offense of conviction, but the commentary to that guideline explicitly states that the conduct must be "proven by a preponderance of the evidence." The problem is that the Ninth Circuit has now defined "same course of conduct" so broadly that it includes conduct that a grand jury previously considered and rejected, or conduct that a trial jury explicitly acquitted the defendant of committing. In Henderson, the defendant was charged in a multi-count indictment that included drug trafficking and firearms offenses. The government dismissed several counts before trial, but the district court still considered the dismissed conduct when calculating Henderson’s base offense level under the drug quantity table. The Ninth Circuit affirmed, holding that the dismissal of charges does not preclude a sentencing judge from finding that the underlying conduct occurred by a preponderance of the evidence. This is not justice—it is judicial alchemy that transforms a dismissal into evidence.

The practical consequences of this ruling are devastating for defendants. In federal court, approximately 97% of cases end in a plea agreement, not a trial. When a defendant pleads guilty to a single count in a multi-count indictment, the government routinely dismisses the remaining counts as part of the plea bargain. Under Henderson, those dismissed counts are now fair game at sentencing. The government can bring in witnesses, introduce hearsay, and present evidence that was never tested by cross-examination or subjected to the rules of evidence—all to persuade a judge to impose a sentence that could be decades longer than the offense of conviction would otherwise warrant. I have represented clients who accepted a plea deal precisely to avoid the risk of a trial on serious charges, only to watch the government use those same charges to jack up their guidelines range. The Supreme Court has repeatedly held that the Due Process Clause requires that any fact that increases the statutory maximum penalty must be found by a jury beyond a reasonable doubt, as established in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). But the Ninth Circuit has now created a loophole: because the Guidelines are technically advisory after United States v. Booker, 543 U.S. 220 (2005), the court claims that judicial fact-finding for relevant conduct does not trigger Apprendi protections. This is a legal fiction that ignores the reality that federal judges still treat the Guidelines as the starting point for every sentence, and a higher guidelines range almost always leads to a longer sentence.

How the Preponderance Standard Corrupts the Presumption of Innocence

The preponderance of the evidence standard is the lowest evidentiary threshold in American law—it requires only that a fact be "more likely than not" true. At trial, the government must prove every element of the offense beyond a reasonable doubt, which is the highest standard we have. The Ninth Circuit’s ruling in Henderson allows a sentencing judge to find that a defendant committed acts that would constitute separate federal crimes, using nothing more than a preponderance of the evidence. This creates a bizarre constitutional paradox: a defendant who is acquitted of a charge at trial can still be sentenced as if he committed that crime, because the sentencing judge can simply re-weigh the same evidence under a lower standard. In my experience, this is not a theoretical concern. I once represented a client who was acquitted of a firearms possession charge because the jury found that the government’s sole witness was not credible. At sentencing, the same judge who presided over the trial found by a preponderance that my client did possess the firearm, and added two points to his offense level under U.S.S.G. § 2D1.1(b)(1). The judge explicitly stated that he was "not bound by the jury’s verdict" because sentencing is a different proceeding with different rules. That judge was wrong then, and the Ninth Circuit has now enshrined that error into law.

The Fifth Amendment’s Due Process Clause has long been interpreted to require that criminal convictions be based on proof beyond a reasonable doubt, as the Supreme Court held in In re Winship, 397 U.S. 358 (1970). But the Ninth Circuit has effectively created a two-tiered system of justice: one standard for conviction and a much lower standard for punishment. This is not how the Framers intended the system to work. The Bill of Rights was designed to protect individuals from the overweening power of the state, and the presumption of innocence is the crown jewel of those protections. When a judge can sentence a defendant for conduct that a jury explicitly rejected, the presumption of innocence becomes a hollow promise. The Henderson ruling also violates the Separation of Powers doctrine by allowing the judiciary to effectively nullify the executive branch’s decision to dismiss charges. When a federal prosecutor moves to dismiss an indictment under Federal Rule of Criminal Procedure 48(a), that dismissal carries a presumption that the charges lack merit or that the government cannot prove them. The Ninth Circuit has now told district judges that they can ignore that presumption and substitute their own factual findings. This is not judicial restraint—it is judicial overreach of the highest order.

Let me address the government’s typical counterargument, which the Ninth Circuit majority found persuasive. The government argues that sentencing has always involved judicial fact-finding, and that the Guidelines merely codify what judges have done for decades. This is a half-truth at best. Before the Guidelines, federal judges had virtually unfettered discretion to sentence anywhere within the statutory range, and they often considered a wide range of information. But that discretion was checked by the fact that the sentencing range was usually broad enough to absorb any relevant conduct findings without dramatically altering the sentence. The Guidelines changed everything by creating a rigid grid where a single factual finding can increase the guidelines range by years or even decades. The Supreme Court recognized this in Booker when it made the Guidelines advisory, but the Court did not authorize judges to ignore the constitutional protections that apply to findings that have such enormous consequences. The Ninth Circuit has now crossed a line that the Supreme Court has consistently refused to cross. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court held that a sentencing court may consider acquitted conduct, but that decision was a per curiam opinion that has been widely criticized and that predates Apprendi and Alleyne. The Henderson ruling extends Watts to its logical extreme, and the result is a system that punishes people for crimes they were never convicted of committing.

Strategic Imperatives for Defense Counsel in the Post-Henderson Landscape

Defense attorneys must immediately adapt their practice to account for the Ninth Circuit’s expansion of relevant conduct. The first and most critical step is to file a detailed objection to the Presentence Investigation Report under Federal Rule of Criminal Procedure 32(f)(1) that specifically challenges any proposed relevant conduct that was dismissed, acquitted, or uncharged. This objection must be supported by a memorandum of law that cites Henderson by name and argues that the government must prove the conduct by clear and convincing evidence, not merely a preponderance, because the conduct would dramatically increase the sentence. While the Ninth Circuit rejected this argument in Henderson, the Supreme Court has not yet ruled on the issue, and several circuits have held that a higher standard may be required when the relevant conduct would result in a sentence that exceeds the statutory maximum for the offense of conviction. I have successfully used this argument in the District of Arizona by analogizing to Apprendi and arguing that the Due Process Clause requires a higher standard of proof whenever the relevant conduct finding effectively creates a new offense. The key is to preserve the issue for appeal, because the Supreme Court is the only institution that can now correct the Ninth Circuit’s error.

Second, defense counsel must demand that the government produce all discovery related to the alleged relevant conduct, including grand jury transcripts, witness statements, and any exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963). The government cannot be allowed to cherry-pick evidence at sentencing while hiding exculpatory material behind the veil of the presentence investigation. I recommend filing a motion under 18 U.S.C. § 3500 (the Jencks Act) and Federal Rule of Criminal Procedure 16(a)(1)(E) to compel production of any statements or documents that relate to the relevant conduct allegations. If the government refuses, move to strike the relevant conduct from the guidelines calculation and argue that the government has failed to meet its burden of proof. The Henderson decision does not relieve the government of its obligation to provide a defendant with a meaningful opportunity to contest the evidence. In fact, the Due Process Clause requires that a defendant be given notice and an opportunity to be heard before a court imposes a sentence based on disputed facts. Use the sentencing hearing as a mini-trial on the relevant conduct, complete with witness testimony, cross-examination, and documentary evidence. The government will often back down when forced to present live testimony because it exposes the weakness of its case.

Third, consider filing a motion for a downward variance under 18 U.S.C. § 3553(a) that explicitly argues that the relevant conduct findings violate the parsimony principle—the requirement that a sentence be "sufficient, but not greater than necessary" to achieve the purposes of sentencing. The Supreme Court in Booker emphasized that the Guidelines are advisory and that district courts must consider the § 3553(a) factors. When the government relies on dismissed or acquitted conduct to inflate the guidelines range, the resulting sentence is almost always greater than necessary because it punishes the defendant for conduct that the government itself chose not to prosecute. I have obtained significant downward variances by arguing that the relevant conduct findings double-count the defendant’s criminal history and fail to account for the actual harm caused by the offense of conviction. The Ninth Circuit’s Henderson ruling does not prohibit district courts from rejecting the guidelines range based on the § 3553(a) factors, and defense counsel should aggressively exploit this discretion. Finally, always appeal the relevant conduct finding, even if the sentence is within the guidelines range. The Ninth Circuit has now created a circuit split with the D.C. Circuit, which held in United States v. Pimienta-Redondo, 874 F.2d 9 (D.C. Cir. 1989), that dismissed counts cannot be used as relevant conduct without a factual basis in the record. This circuit split makes the issue ripe for Supreme Court review, and every appeal that preserves the issue brings us one step closer to overturning Henderson.

Why Congressional Action Is the Only Long-Term Solution

The Ninth Circuit’s Henderson ruling is not merely a judicial error—it is a fundamental betrayal of the constitutional compact between the branches of government. The legislative branch, through the Sentencing Reform Act, created the Sentencing Commission to promulgate guidelines that would be based on empirical data and sound policy. The Commission never intended for relevant conduct to include conduct that had been dismissed or acquitted, as evidenced by the fact that the original guidelines commentary specifically excluded such conduct. The Ninth Circuit has effectively rewritten the statute, and Congress has both the authority and the obligation to correct this error. I urge defense attorneys and civil liberties organizations to lobby Congress to amend 18 U.S.C. § 3661, which currently provides 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." This statute is the statutory basis for the relevant conduct doctrine, and it must be amended to explicitly prohibit the consideration of dismissed or acquitted conduct at sentencing. The Sentencing Reform Act was designed to increase transparency and fairness in sentencing, and the Ninth Circuit has turned it into a tool for prosecutorial overreach.

Congress should also consider amending U.S.S.G. § 1B1.3 to require that relevant conduct be proven by clear and convincing evidence when the conduct would increase the guidelines range by more than two offense levels. This would align the federal sentencing system with the approach taken by several states, including California and New York, which require a higher standard of proof for sentencing enhancements that dramatically increase punishment. The Sentencing Commission has the authority to promulgate such an amendment under 28 U.S.C. § 994(p), and the Commission should act immediately to restore the integrity of the guidelines. In the meantime, defense counsel must continue to challenge the constitutionality of the Henderson ruling under the Due Process Clause and the Sixth Amendment. I am confident that the Supreme Court will eventually grant certiorari and reverse the Ninth Circuit, because the ruling is inconsistent with the Court’s holding in Apprendi that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury. The fact that the Guidelines are advisory does not change the constitutional calculus, because the guidelines range still exerts a powerful anchoring effect on sentencing decisions. Until the Supreme Court or Congress acts, defense attorneys must fight every relevant conduct finding with every tool at their disposal, because the stakes are nothing less than the liberty of every person charged with a federal crime.

If you or a loved one is facing federal sentencing in the Ninth Circuit