Ken Tableman Law Blog
Federal Sentencing - Relevant Conduct
What information can a federal judge consider at sentencing?
And what standard of proof applies?
The law says that the court can consider a wide range of information and courts have held that it need only be proven by a preponderance of the evidence. In addition the sentencing guidelines have introduced a concept called relevant conduct. Relevant conduct is broader than the conduct that supports the offense of conviction. It includes everything that the defendant did "during the commission of the offense of conviction, in preparaton for the offense, or in the course of attemptiong to avoid detection or responsibility for that offense." It also includes "all reasonably foreseeable acts and omissions of others in furtherance of ... jointly undertaken criminal activity." USSG Section 1B1.3.
In practice, a defendant acquitted a trial of drug conspiracy charges but convicted of distributing drugs, can still be sentenced to a longer sntence based on what took place in the conspiracy if the trial court concludes by a preponderance of the evidence that the defendant was part of the conspiracy. United States v. Kevin St. Hill, No. 13-2097, (1st Cir. October 1, 2014).
But this approach conflicts with several Supreme Court cases that say that facts that increase the penalty for a crime must be proven to a jury beyond a reasonable doubt. To do otherwise violates the Sixth Amendment's right to jury trial and the Fifth Amendment's right to due process of law. But thus far the Supreme Court has shied away from saying so. See Jones v. United States, No. 13-10026, 574 US (October 14, 2014) Scalia, J., dissenting.
Until the Supreme Court rules, the best you can do as a defendant is to object, and to ask the court to only use jury-found facts to increase a sentence.