Relevant Conduct for Federal Sentencing Guidelines


Relevant conduct in federal sentencing guidelines can be a complicated topic, and for some people convicted of federal criminal violations, it can unfairly result in harsher penalties and increased prison sentencing. Essentially, during sentencing for a criminal conviction, the judge can consider all the allegations against the defendant, despite having no finding of guilt for those charges, or even where no criminal charges were filed.

Relevant Conduct

During sentencing for federal criminal violations, the judge considers not only the specific act for which the defendant is convicted, but also considers the scope of behavior involved. The judge first considers the sentencing guidelines for the base offense, then adjusts the penalty based on numerous other factors, even if they were not part of any guilty plea deal. Some argue that relevant conduct in sentencing can be used to bypass an individual's constitutional right to due process of law, under the Fifth Amendment.

Application of the relevant conduct guidelines in sentencing appears like a complicated math formula. First, the judge determines the base offense level, and applies specific offense characteristics. Then the apply adjustments depending on the victim of the crime, their individual role, and any obstruction of justice. For multiple counts, the judge repeats the above steps for each count. Next, the judge adjusts the sentence based on the defendant's acceptance of responsibility.

After determining the base level offense, and making adjustments by increasing or decreasing those levels, the judge then makes adjustments based on the defendant's criminal history. Given a grid-form sentencing table, the judge selects the appropriate offense level from the vertical axis, and selects the appropriate criminal history category from the horizontal axis. The judge then imposes a sentence based on the given sentencing range. Effectively, these guidelines give judges wide discretion when it comes to federal sentencing.

Range of Activity Considered for Sentencing

Under the United States Sentencing Commission guidelines, there are a number of factors that determine the range of activity to be considered for sentencing. This includes:

  • All acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant;
  • In the case of jointly undertaken criminal activity (such as a criminal enterprise or conspiracy), all reasonably foreseeable acts and omission of others in furtherance of the joint criminal activity;
  • All harm that resulted from the acts and omissions and all harm that was the object of the acts and omissions; and
  • Any other information.

2014 U.S.S.C. Guidelines Manual, §1B1.3. Relevant Conduct (Factors that Determine the Guideline Range).

Sentencing for Another Person's Crime

A judge can consider the criminal conduct of another person when determining a defendant's prison sentence. If the defendant is involved in a criminal activity with another person, the judge can include all foreseeable acts and omissions of others in furtherance of the criminal activity.

As an example, Mike wants to rob a bank. Joe agrees to be Mike's getaway driver. While robbing the bank, a security guard tries to hit the alarm, and Mike shoots and kills the security guard. Joe hears the gunshot, and gets scared and drives away. During sentencing, Joe can still be accountable for robbery and the death of the security guard even if that wasn't part of the plan. Given the nature of bank robbery, it is reasonably foreseeable that someone could be assaulted or killed in the commission of the robbery.

Example of Relevant Conduct Formula

If a defendant is convicted for aggravated assault, their base level for sentencing is offense level 14. If a firearm was discharged, increase by 5 levels. If the victim sustained bodily injury, increase by 3 levels. If the assault was motivated by the payment of money, increase by 2 levels. This now puts the sentencing level at 24.

2014 U.S.S.C. Guidelines Manual, §2A2.2. Aggravated Assault.

Then the judge makes adjustments in consideration of the victim, the defendant's role, obstruction of justice, acceptance of responsibility and the number of counts. If the defendant was physically restrained, increase by 2 levels. If the defendant was a minor, decrease by 2 levels. If the defendant recklessly fled from the police, increase by 2 levels. If the defendant accepts responsibility for their offense, decrease by 2 levels. If the defendant had a prior conviction that resulted in 60 days in jail, add two points for criminal history.

This is an example of someone facing only one criminal charge. For multiple charges, the judge will go through the same formula for each charge, and consider grouping the criminal charges. Sentencing in consideration of relevant conduct can get complicated very quickly, with adding and subtracting levels, and adding criminal history points. In the end, a single conviction for aggravated assault can mean a prison sentence of 6 months, on up to 20 years or more behind bars.

Sentencing for Uncharged Crimes

In some cases, a defendant may be effectively sentenced for crimes that were never even charged as part of the indictment. Federal prosecutors may charge a defendant for a lower-level offense, and the defendant may accept a plea deal for that offense. During the sentencing phase, the defendant may expect to be sentenced only for that offense. However, prosecutors may argue for an increased sentence based on “relevant conduct,” even if there was no finding of guilt for the uncharged criminal activity. The judge may then sentence the defendant to a much lengthier prison sentence than they ever expected for criminal activity they never pleaded guilty to.

Legal Representation for Federal Sentencing

If you or someone you know has been charged with federal criminal offenses, the resulting prison sentence may not match the charges filed. It is important to speak to an experienced criminal lawyer who understands how relevant conduct can greatly impact sentencing. While it may appear that accepting a plea deal will result in a reduced prison sentence, prosecutors may later ask for a harsher sentence based on relevant conduct.

Criminal defense lawyers with experience representing clients facing federal criminal charges understand that defending their clients does not end with a finding of guilty or not guilty. The sentencing is ultimately what will determine how much time the defendant may be facing in prison. Your federal criminal defense lawyers can fight to keep you out of jail, and make sure a guilty plea does not lead to increased sentencing for “relevant conduct.”

What Happens Now?

If you are incarcerated, we will contact you in the jail where you are held, and we will remain in contact throughout the pendency of your case. If you are able to come in to the office, we will ask you to come meet in person as soon as possible. Our approach to defense is zealous, organized, and fast-paced, and we look forward to helping you.


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