The Sixth Amendment Right to Fair Sentencing: An Analysis of Acquitted, Dismissed, and Uncharged Conduct Under the Federal Sentencing Guidelines

This Note examines three scenarios in which the relevant conduct provision of the Federal Sentencing Guidelines implicates the Sixth Amendment right to a jury trial. The U.S. Sentencing Commission recently proposed an amendment to the Federal Sentencing Guidelines, which would forbid judges from considering so-called "acquitted conduct" at sentencing. The current interpretation of the relevant conduct provision allows a sentencing judge to consider a criminal defendant's conduct, regardless of whether the defendant was found guilty of that conduct at trial. Relying on acquitted conduct, a judge may decide that a defendant who was found guilty of one charge and acquitted of another must serve a sentence as if they had been convicted of both. While the acquitted conduct amendment would address the most glaring Sixth Amendment issue presented by the relevant conduct provision, this note argues that there are at least two other sentencing practices that present the same problem. First, when a charge against a defendant gets dismissed, the judge may still consider the conduct underlying that charge at sentencing (dismissed conduct). Second, a sentencing judge may consider a defendant's conduct even if the defendant was never formally charged for an offense relating to that conduct (uncharged conduct). Because the sentencing judge reviews relevant conduct under a preponderance of the evidence standard, as opposed to the stricter, beyond a reasonable doubt standard that a jury would be held to, the relevant conduct provision presents major Sixth Amendment issues which warrant further consideration. If the Sentencing Commission does away with acquitted conduct sentencing, this Note argues that dismissed and uncharged conduct should follow.