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January 6, 2009

Might the US Sentencing Commission have any notable guideline amendments in the works?

As detailed in this official announcement, "a public meeting of the [U.S. Sentencing] Commission is scheduled for Tuesday, January 13, 2009, at 11:30 a.m."  And, on the official agenda is "Possible Votes to Publish Guideline Amendments and Issues for Comment." 

I have not heard any advance buzz about any major guideline amendments in the works.  But, as eagle-eyed readers may have learned from this post linking to this recent this fascinating Q&A interview,  now-former US Sentencing Commissioner John Steer has stated that, before he left the commission, he "provided my colleagues with a draft amendment to accomplish" the objective of ending the requirement that acquitted conduct be used in determining the guideline range. 

I would be quite excited (and somewhat surprised) if the USSC has an amendment dealing with acquitted conduct in the works.  But, in these days of transition and lots of inside-the-beltway changes, perhaps this aspect or some other notable aspects of the existing federal sentencing guidelines might be subject to amendment.

January 6, 2009 at 07:01 PM | Permalink


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I think it is misleading to say that here is a "requirement" that acquitted conduct be used to determine the guideline range. It is to be evaluated under the rules of relevant conduct and included only when and if the preponderance standard is met. Even then, most Federal Courts are reluctant to make specific findings of fact on acquitted conduct unless the Government forces the issue and has made a clear and convincing case at a minimum.

This notion that all Federal Courts are including acquitted conduct in all guideline calculations is hogwash.

Posted by: mjs | Jan 7, 2009 4:07:10 PM

MJS: Given the dozens of circuit precedents upholding acquitted conduct enhancements, what support do you have for your hogwash assertion?

Given that very few cases even go to trial (95% of federal convictions follow a guilty plea), it is true that the acquitted conduct rule does not arise in that many federal sentencings. But I have seen little reason to believe that federal courts are reluctant to increase sentences based on these factors. Moreover, the Fourth Circuit in Ibgana reversed a district court that sought NOT to include acquitted conduct in its guideline calculations.

Posted by: Douglas A. Berman | Jan 11, 2009 7:10:27 PM

I'm a retired newspaper editor doing research for a book on muscle-bound prosecutors and dwindling due-process protections in the federal system.

In my first reporting job after college, I covered state and federal courts. And after more than 30 years as a reporter, editorial writer, editor and journalism professor I thought I knew a lot about the justice system.

But I was inspired to do the book after a close acquaintence was swept up in a federal task force operation in 2005. The experience has been eye-opening to say the least.

So it's nice that at least one brave senator and some USSC functionaries seem willing to tinker at the margins of the guidelines.

That said, it's difficult to get worked up over the prospect of treating aquitted conduct as acquitted conduct.

Get back to me when the USSC boldly moves to allow federal judges to function once again as judges. The guidelines coupled with RICO and drug-war statutes strike this non-lawyer observer as little more than an executive-branch conviction machine.

And the machine seems far more focused on volume and speed than truth and justice. The working title of the book, by the way, is "Toxic Prosecutors, Doo Process and the Right to a Rare Trial."

Posted by: John K | Jan 13, 2009 11:33:15 AM

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