The most controversial feature of the Federal Sentencing Guidelines concerns the decision to base sentences on “relevant conduct.” Traditionally, judges have sentenced defendants for the crime or crimes that resulted in a conviction after a guilty plea or a trial.

Judges have always been able to consider many other factors when imposing a sentence (the defendant’s criminal record is usually the most important), including accusations that the defendant committed other crimes that did not result in a conviction. While judges could consider accusations of uncharged crimes to the extent that they reflected upon a defendant’s character, judges could not punish defendants for those crimes.

Unless the defendant admitted those offenses, judges tended to give little weight to uncharged crimes. Everyone understood that defendants were presumed innocent and that giving significant weight to uncharged crimes amounted to punishing defendants for crimes without giving them the benefit of a jury trial.

Federal Sentencing Guidelines Get Tougher

The Federal Sentencing Guidelines changed the traditional way in which sentences were imposed. The Sentencing Commission, driven by the misguided notion that plea bargaining allows defendants to escape punishment for some of the crimes they committed, added the concept of relevant conduct to the Sentencing Guidelines to assure that defendants were held accountable for all the crimes they committed, even if the government could not prove those crimes beyond a reasonable doubt.

As long as a judge at sentencing decides that the defendant probably committed those crimes (often based on nothing more than doubtful statements made to the police by a criminal who hoped to earn a lesser sentence by shifting blame to the defendant), the defendant can receive extra punishment for the “real offense” rather than the offense that the defendant admitted during a guilty plea or that the government proved beyond a reasonable doubt at trial.

Determining Relevant Conduct

While the definition of relevant conduct is complicated, in drug cases uncharged crimes are considered to be relevant conduct if they are:

  • In the case of a conspiracy or a crime committed with other people, all other crimes that are committed by those other people that furthered or related to the crime of conviction; and
  • Whether or not the conviction is for a conspiracy, any additional crime that is “part of the same course of conduct or common scheme or plan as the offense of conviction.”

Courts have given a broad interpretation to the phrase “course of conduct.” Take, for example, a defendant who is arrested on a street corner after he delivers a half gram of powder cocaine to an undercover officer. A snitch tells the police that the defendant has been selling cocaine on that corner for six months and has probably sold a total of a half kilogram of cocaine.

If the judge believes the snitch is probably telling the truth, the judge should (according to the Guidelines) base the defendant’s sentence on a half kilogram rather than the half gram with which he was caught.

Real Offense Sentencing

The problem with “real offense sentencing” is that the “real offense” was determined without the constitutional protections that guard against unfair punishment, including indictment, a jury trial, proof beyond a reasonable doubt, and confrontation of witnesses. Relevant conduct allows a defendant to be convicted not just of uncharged crimes, but of crimes that the government charged but dismissed, as well as crimes with which the defendant was charged and found “not guilty.”

The government’s ability prove a crime beyond a reasonable doubt does not matter when a defendant is sentenced for relevant conduct. All that matters is what the judge thinks is probably true.

Relevant conduct was particularly troublesome between 1987 and 2005, when the Guidelines were considered binding on federal judges. Since judges are still required to give the Guidelines careful consideration, relevant conduct is still troublesome.

Now that the Guidelines are no longer binding, however, defense attorneys have more opportunity to persuade judges to give less weight to uncharged crimes and to focus sentences instead on the crime that resulted in a conviction.