Acquitted Conduct Amendment Takes Effect November 1st, Many Don’t Understand What It is.

After President Joe Biden took office he sat the first complete United States Sentencing Commission in over 7 years. During the preceeding 7 years, although the guideline manuals were continuously published, no significant changes had occured until 2022.

In 2022 after the full sentencing commission was formed they went right to work on a handful of amendments that took effect November 1st 2023 with a stay until February 1 2024. Those amendments included the 821 2 point downward departure for criminal history, the re-calculation for “status” points and changes to the compassionate release statute, among other things.

This year, the commission has another slate of amendments taking effect on November 1st, with some changes that aren’t exactly what they seem.

First off, the 2023 amendments were designated retroactive, meaning that even those already sentenced would receive the relief if they qualified. Many did in fact qualify for 821 relief.

This years amendments were not designated retroactive. Rather than deeming them not retroactive, the sentencing commission decided to not decide altogeher.

Many federal inmates were hoping for a retroactive designation, especially because one of the amendments focuses on “acquitted conduct”. However many federal inmates are unclear as to the meaning of acquitted conduct.

According to the actual amendments, found here, acquitted conduct only covers conduct that an inmate has actually been acquitted of. In laymen’s terms that means conduct that the defendant has been found “not guilty” of either by a Federal Judge or Federal Jury.

Acquitted conduct does not include charges that were dropped off of an indictment, as many defendants and inmates were hoping.

However, if a federal inmate was sentenced, and something they had previously been found “not guilty” of, by a judge or jury, was considered or played a factor in negative sentencing, there would be relief. If it was retroactive. Now this only affects defendants who have yet to be sentenced.

It could be possible to still get relief

If you were sentenced and actual acquitted conduct had a factor in it, there may still be room for relief in the form of a 3582(c)(2) motion. This is not a guarantee but has worked in some district courts in some circuits, when it comes to the 924c “stacking” that was eliminated with the First Step Act of 2018. In addition, the retroactivity wasn’t denied, it was just put off.

However, bare in mind nothing that any inmate defendant can do will actually change the definition of acquitted conduct per the guideline amendments. Acquitted conduct is ONLY conduct a defendant had previously been found not guilty of, and it’s specific to federal court.

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