Effective Nov. 1, 2024, the Sentencing Commission has amended the Federal Sentencing Guidelines so that “[r]elevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court unless such conduct also establishes, in whole or in part, the instant offense of conviction.” Section 1B1.3(c). How the acquitted conduct amendment came into being and what its “unless clause” means are worthy of consideration.

A cornerstone of the federal sentencing guidelines is the concept of “relevant conduct.” In calculating a defendant’s guidelines range for fraud and drug offenses, a sentencing judge is instructed to consider all acts “that were part of the same course of conduct or common scheme or plan as the offense of conviction.” USSG §1B1.3(a)(2). If conduct comes within that broad definition, it is includable in the guidelines calculation even if it is not formally charged.