The Perils of "Relevant Conduct" in Federal Sentencing by Blue LLP


Posted on 9 Mar 2012


The concept of "Relevant Conduct" can result in a prison term that is much more that a defendant may initially anticipate.

Crimes prosecuted in federal court often result in harsher sentences than what may be expected in the state judicial system.  Much of this can be attributed to the fact that many federal laws have mandatory minimum sentences for certain crimes.  But surprisingly, mandatory minimums often are not the biggest problems that defendants face.  In other words, federal sentencing is not as straightforward as reading a statute to determine a prospective sentencing range.  It is far more complex and nuanced.

Federal sentencing mostly is dictated by the United States Sentencing Guidelines Manual, which is promulgated by the United States Sentencing Commission.  Even though the U.S. Supreme Court has ruled that a judge does not have to apply the Guidelines Manual when fashioning an appropriate sentence, the Manual has been – and remains – the foundation of all sentencing proceedings.  

In a nutshell, the Guidelines Manual (which happens to be several hundred pages) is used to develop a matrix of “points” in a particular case.  The points, which are used to determine where a defendant falls on a sentencing chart, largely dictate what the sentencing judge determines to be an appropriate term of imprisonment.  The process sounds simple and straightforward, but of course it is not. 

Once a defendant is found guilty after a trial or through a plea, the sentencing process is initiated by a report, called the Presentence Report, drafted by a U.S. Probation Officer.  The P.O. reads police reports that are drafted by federal agents and local law enforcement officers, and also consults with the Assistant U.S. Attorney prosecuting the case.  The P.O. uses this information, along with the Guidelines Manual, to add up a defendant's criminal history points and offense level to recommend a sentence.  Since neither the Rules of Evidence nor the “proof beyond a reasonable doubt” standards apply in federal sentencing proceedings, the P.O. treats an agent’s report - or a criminal informant's statement - as if they are substantiated facts.

Importantly, tucked away in the Guidelines Manual is a brief section entitled "Relevant Conduct."  See U.S.S.G. § 1B1.3.  Despite its brevity, this part of the Manual can have a dramatic and severe impact on sentencing calculations.  According to the Manual, the theory behind the relevant conduct concept is to hold the defendant accountable for all criminal conduct related to the offense of conviction, even if the defendant was never held criminally liable for such conduct. 

So why is “relevant conduct” so important?  Because the P.O.’s report will include all kinds of information detrimental to the defendant, even if the defendant was never found guilty of those allegations.  These allegations translate into points, and more points lead to longer sentences. 

For example, Defendant A pleads guilty to possession with the intent to distribute at least 200 grams of cocaine.  He already has a lengthy criminal record and is facing a lot of time, so he decides to give the government information about other people in the neighborhood that he claims were involved with drug activity.  He does this so that he can receive a reduction in his sentence.  A few months later, Defendant B is pulled over.  The officers search her car and find an ounce of cocaine (approx. 28.35 grams).  Defendant B is charged with possession of at least 25 grams of cocaine, and pleads guilty.  It turns out that Defendant A, who has been promised leniency from the government in exchange for cooperation, has told federal agents that he sold Defendant B at least 4 ounces (approx. 113 grams) of cocaine every month for 1 year.  Keep in mind that there is no other evidence, other than this one statement, that Defendant A actually sold that amount of cocaine to Defendant B.  Guess what?  Once the P.O. reads Defendant A’s statement, Defendant B goes from being accountable for the 28.35 grams of cocaine found in her car to roughly 1,389  grams of cocaine.  Needless to say, the potential prison time that Defendant B could face increases greatly, all based on alleged “Relevant Conduct."

While the "Relevant Conduct" concept has been criticized extensively by federal criminal defense attorneys and legal commentators, defendants have an opportinuty to challenge unreliable statements upon which U.S. Probation Officers base their findings of fact.  Even after a defendant's guilt is determined at trial or plea, both defense attorneys and investigators play a critical role, particularly in drug conspiracy cases, in limiting a defendant's vulnerability to uncorroborated, unsubstantiated allegations.