Being Acquitted and Doing time

By: Zenon P. Olbertz; Sept 1996

            For those of us who don’t get past the Chihuly glass exhibit at Tacoma’s Union Station, or can’t get to the Federal Courthouse in Seattle because there’s no place to park, federal sentencing law is probably not on the top of our “need to know” list.  However, for those of us who practice criminal law, it is not uncommon to face the potential specter of a federal criminal prosecution in large drug cases, cases occurring on military or tribal land, or cases involving bank fraud or bank theft.

            For those of you who have gone through the humbling experience of being with a client who after indictment has been required to spill his guts in the United States Attorney’s office in hopes that they might offer him a deal, the Federal Sentencing Guidelines should have some passing interest.

            The Federal Sentencing Reform Act of 1984 was passed by the 98^th Congress on October 11, 1984, and signed into law the following day.  The Commission set up by the Guidelines and the Guidelines themselves came under strong attack in virtually all the circuits.  The constitutionality of the guidelines was resolved by the United States Supreme Court in Mistretta v. U.S., 488 US 361 (1989).  As of this date, the Sentencing Commission has adopted well over 500 amendments and there have been over 7500 published opinions involving the guidelines in the federal circuits.

            To get some idea of the complexity of the guidelines and the amendments, one need only pick up a copy of the 1100 page Federal Sentencing Guidelines manual.

            One of the more interesting hurdles in applying the guidelines to the individual case is trying to determine what conduct counts in the guidelines calculation.  Section 1B1.2 of the guidelines indicates that the offense guideline should be determined by using the guideline most applicable to the offense of conviction.  While this section appears to resolve the question of what conduct to consider, the issue is not quite so simple.  Immediately following Section 1B1.2 is Guideline 1B1.3 which is entitled “Relevant Conduct (Factors that Determine the Guidelines Range).”  This section opens up a Pandora’s Box of potential pitfalls for the unwary practitioner.

            For those of you who have made it this far in this article, this means hard time for no crime.

            Section 1B1.3 requires the court to assign a base offense level based on “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant…and in the case of joint criminal activity…all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity, that occurred during the commission of the offense of conviction, in preparation for that offense, or in the court of attempting to avoid detection or responsibility for that offense.”

            As one can see, this relevant conduct section of the Federal Sentencing Guidelines can have unthought of impact in federal sentencing matters.  The major impact of the relevant conduct provision is that dismissed or uncharged counts or conduct do not disappear.  For example, many circuits have determined that a defendant who pleads guilty to an unarmed bank robbery will still have or his or her sentence increased for the possession of a gun during the bank robbery even though the gun was not charged.  See, for example, U.S. v. Frierson, 945 F.2d 650, (3^rd Cir. 1991).  Indeed, a number of circuits have determined that the court in determining a sentencing guidelines can consider acquitted conduct, either for the purpose of departure or calculation of the range.  Our Ninth Circuit seems to be the only appellate court that has ruled that a sentence may not be based on a factor rejected by a jury’s not guilty verdict.  See U.S. v. Brady, 928 F.2d 844 (9^th Cir. 1991).

            This issue of relevant conduct only gets worse.  For sentencing purposes a court uses the lower standard of proof of preponderance of the evidence and there is no statute of limitations bar to the use of evidence that can enhance the guidelines range.  When evidence that can affect the severity of the offense is disputed, the defendant is not entitled to a jury and typical confrontation clause rights do not apply.  (Hearsay is admissible at a sentencing hearing as long as it is reliable.  U.S. v. Sciarrino, 884 F.2d (3^rd Cir. 1989)).

            The relevant conduct provision hits especially hard in drug, fraud and other cases where the guidelines are quantity driven, e.g. quantity of drugs or amount of loss.  For example, evidence of quantity of drugs involved in similar or uncharged sales can be used to calculate the overall guideline range if the conduct was part of the same course of conduct or common scheme as the offense of conviction.  Thus, if a defendant is charged with five counts of delivery of a controlled substance and pleads guilty to one count on condition that the other four counts be dismissed by the government, the quantity of drugs used to calculate the guideline range would include the amount of drugs in the dismissed counts, providing there is sufficient similarity, regularity and temporal proximity.  See U.S. v. Hon, 960 F.2d 903 (9^th Cir. (1992). 

            As alluded to earlier, a particular defendant’s guidelines calculation can also be based on the conduct of others, if 1) the conduct is both in furtherance of the jointly undertaken criminal activity and 2) reasonably foreseeable in connection with that criminal activity.  Bottom line in conspiracy or other jointly undertaken criminal activity cases is that the sentencing court must determine the individual culpability of those involved in joint conduct.  See U.S. v. Jenkins, 4 F.3d 1338 (6^th Cir. 1993).

            The only good news that can be imparted in this whole scenario is that Guideline 1B1.8 provides that self-incriminating information provided during a defendant’s cooperation with the government will not be used in determining the applicable guideline range.

            Now that you have all aired a sigh of relief, consider the fact the calculation or attempted calculation of your client’s potential exposure must be conducted without the benefit of discovery as we know it (remember the Jencks Act) and normally without the benefit of any preliminary agreement with the government in regard to a plea bargain.

            As can be seen, the relevant conduct provision of the Federal Sentencing Guidelines can result in a client receiving additional time for the conduct of others and for crimes for which he/she was never charged or convicted.

            For those of you who are still unable to sleep after reading this article, more guideline tidbits are forthcoming.