Understanding “Relevant Conduct” Under the Federal Sentencing Guidelines

By Joseph Abrams on February 1, 2021

What is relevant conduct?

The guidelines’ relevant conduct provisions are set forth at Guideline Section 1B1.3. These rules specify the conduct for which a defendant may be held accountable in determining the guideline offense level and, hence, the guideline sentencing range.

To establish relevant conduct, the sentencing court need only find the facts by a preponderance of the evidence. Importantly, relevant conduct does not need to be proved at trial or admitted by the defendant. In fact, relevant conduct can include dismissed charges, uncharged conduct, and even acquitted conduct. Under certain circumstances, relevant conduct may further include conduct of coconspirators, and conduct beyond the offense of conviction.

Because the guidelines’ relevant conduct principles are exceedingly broad, they present a constant and significant challenge for federal criminal defense lawyers. However, a clear understanding of the core relevant conduct definitions, how they are applied, and their inherent limitations provide defense attorneys with the opportunity to successfully limit relevant conduct findings and sentencing exposure for their clients.

Understanding “Relevant Conduct” Under the Federal Sentencing Guidelines

The “standard” definition of relevant conduct.

The standard definition of relevant conduct, which applies in all federal cases, is that relevant conduct includes “all acts and omissions” committed by the defendant during the commission of the offense of conviction. Guideline Section 1B1.3(a)(1)(A).

In the case of a “jointly undertaken criminal activity,” relevant conduct also includes “all acts and omissions of others” that were “within the scope” of the jointly undertaken criminal activity, were “in furtherance” of that activity, and were “reasonably foreseeable” in connection with that activity. Guideline Section 1B1.3(a)(1)(B)(i)-(iii).

As described above, even at its most basic level, the standard definition of relevant conduct holds a defendant liable for conduct beyond what is required to establish the conviction by including “all acts and omissions” committed during the commission of the offense of conviction. Further, where there are multiple participants, the standard definition of relevant conduct expands to include coconspirator liability, even in the absence of a conspiracy conviction or charge.

The “broadened” definition of relevant conduct.

The broadened definition of relevant conduct, commonly referred to as “expanded relevant conduct,” applies to offenses where the guidelines rely on an aggregation of quantity to determine culpability, such as with drug trafficking, fraud, and tax offenses. In these cases, the defendant is not only liable for all acts and omissions described in the standard definition of relevant conduct, but also conduct that was part of the “same course of conduct or common scheme or plan” as the offense of conviction. Guideline Section 1B1.3(a)(2).

The phrases “same course of conduct” and “common scheme or plan” have related but distinct meanings. To constitute part of a “common scheme or plan,” the conduct must be substantially connected to the offense conduct by at least one common factor, such as common victims, accomplices, purpose, or modus operandi. Conduct that does not qualify as part of a “common scheme or plan” may nonetheless qualify as part of the “same course of conduct.” Factors that are considered in determining whether conduct is sufficiently connected to the offense conduct to constitute part of the “same course of conduct” include the degree of similarity, regularity, and temporal proximity.

As described above, “expanded relevant conduct” has a vast reach that may include conduct beyond the offense of conviction based on one or more of several factors, including victims, accomplices, purpose, modus operandi, similarity, regularity, and temporal proximity.

Limiting the reach of relevant conduct

The approach to limiting the reach of relevant conduct will necessarily differ based on the type of offense that is involved.

If the offense of conviction is not of the type where the guidelines rely on an aggregation of quantity to determine culpability, then the defendant is subject only to the “standard” definition of relevant conduct. If, however, the offense of conviction is measured by aggregate harm, then the “broadened” definition of relevant conduct applies. (Note: An offense that is measured by aggregate harm for purpose of relevant conduct analysis is an offense that is groupable under Guideline Section 3D1.2(d), the particulars of which are beyond the scope of this article.)

Where only the “standard” definition of relevant conduct applies – and the defendant acted alone – the focus is limited to the defendant’s own conduct in committing the offense of conviction. Therefore, the strategic approach to limit relevant conduct under these circumstances is simply to limit the number of “acts and omissions” that can reasonably be considered part of the offense. For example, in an investment fraud case where the government seized device-making equipment from the defendant’s residence, it can be argued that the equipment was not possessed or used in connection with the investment fraud, and therefore the defendant should not be subject to the guideline sentencing enhancement for possession of device-making equipment.

Where the “standard” definition of relevant conduct applies, but the defendant acted with others, the focus expands to include the conduct of others that was “within the scope,” “in furtherance,” and “reasonably foreseeable” in connection with the jointly undertaken criminal activity. Therefore, the strategic approach to limit relevant conduct under these circumstances is to contest the scope of the criminal activity that the defendant agreed to partake in. For example, in a case where the defendant agrees to participate in a telemarketing fraud, and a codefendant goes to a victim’s house to obtain money at gunpoint, the defendant is arguably not liable for this conduct because telemarketing fraud generally does not carry the potential for violence. As such, the conduct of the codefendant is outside the scope of the agreed activity, and therefore not relevant conduct to the offense of conviction. For similar reasons, this same conduct can neither be in furtherance of the activity nor reasonably foreseeable in connection with the activity.

Where the “broadened” definition of relevant conduct applies, the defendant is liable for “expanded relevant conduct” that includes conduct that was part of the “same course of conduct or common scheme or plan” as the offense of conviction. Therefore, the strategic approach to limit relevant conduct under these circumstances is to distinguish the additional conduct as being not sufficiently connected to the offense conduct to constitute part of a “common scheme or plan.” This can be argued on a number of factors, including that the conduct involved different victims, different accomplices, a different purpose, or different modus operandi. For example, in a case where multiple defendants defrauded a group of individual investors, one of the defendants concurrently defrauds a bank on a false loan application, the loss to the bank cannot be considered relevant conduct to the other defendants because the conduct involved a different victim, purpose, and modus operandi.

Where “expanded relevant conduct” applies, it may be necessary to further distinguish the additional conduct as not sufficiently similar to the offense conduct to constitute part of the “same course of conduct.” This also can be argued on a number of factors, but most importantly that the conduct did not occur regularly as part of the offense or that it was removed in time from the offense conduct. For example, in a felon in possession case where the government is seeking the guideline enhancement for possessing the firearm in connection with another offense, the date on which the other offense occurred would be a critical consideration in excluding the conduct as relevant conduct.

Conclusion

The above discussion does not address all of the complexities of relevant conduct under the guidelines, but only the foundational definitions of relevant conduct and the basic approaches to limiting relevant conduct. A federal criminal defendant can most effectively limit their sentencing exposure by choosing a federal criminal defense attorney who is informed and has expert knowledge of the guidelines’ relevant conduct principles. The attorney must also be prepared and able to argue for limiting relevant conduct findings against federal prosecutors who have the experience, resources, and desire to secure lengthy sentences in federal criminal cases.

Law Office of Joseph Abrams can help make things right. Contact us right away.