Federal judges can still consider conduct a jury acquitted you of when they sentence you, but a 2024 change to the federal sentencing guidelines sharply limits how that acquitted conduct sentencing works: as of November 1, 2024, conduct underlying a federal acquittal cannot be used to calculate your guideline range. Judges retain discretion to weigh it when choosing a sentence within or outside that range, and acquittals in state court and uncharged behavior are not covered at all.
What Acquitted Conduct Sentencing Actually Is
An acquittal means the jury, after hearing the evidence, refused to authorize punishment for a charge. For decades, that refusal did not stop the sentencing judge from turning around and punishing the defendant for the same conduct anyway.
The mechanism is the difference between two standards of proof. A jury convicts only when the government proves guilt beyond a reasonable doubt. A sentencing judge, by contrast, decides factual questions by a preponderance of the evidence — the much lower “more likely than not” standard. Under the Supreme Court’s 1997 decision in United States v. Watts, a jury’s acquittal did not prevent the judge from finding the underlying conduct proven by that lower standard and using it to increase the sentence.1Legal Information Institute. United States v Watts, 519 US 148 (1997) The reasoning was that an acquittal shows only that the prosecution failed to hit the higher bar, not that the conduct never happened.
In practice, the effect on sentences was enormous. Dayonta McClinton’s case shows the scale. McClinton, then 17, was convicted of robbing a CVS pharmacy and of brandishing a firearm during that robbery. He was acquitted of robbing and killing a co-conspirator named Perry in a later dispute over the proceeds. Without the acquitted killing, his guidelines range was roughly 57 to 71 months. Once the judge factored Perry’s death in as “relevant conduct,” McClinton’s offense level jumped to 43, the top of the guidelines, with a recommended sentence of life. He received 228 months plus an additional 84 months on the firearm count.2Supreme Court of the United States. McClinton v United States The jury said no to the murder. The judge added roughly a decade for it anyway.
The 2024 Rule Change
The U.S. Sentencing Commission adopted Amendment 826, effective November 1, 2024, in direct response to McClinton and cases like it. The amendment added a new subsection to the relevant conduct guideline stating that relevant conduct “does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.”3United States Sentencing Commission. Amendment 826 The Commission also updated its sentencing policy to say plainly that “acquitted conduct is not relevant conduct for purposes of determining the guideline range.”
For anyone sentenced after November 2024, this is a real change. A judge can no longer plug acquitted federal conduct into the guideline math the way McClinton’s judge did. Under this rule, McClinton’s offense level of 43 could not be built on the acquitted killing.
What the New Rule Does Not Do
The amendment has boundaries that matter, and each one describes a situation where acquitted conduct sentencing can still happen in some form.
State Acquittals Are Not Covered
The amendment protects only conduct “criminally charged and acquitted in federal court.”3United States Sentencing Commission. Amendment 826 If a state jury acquitted you and the federal government later picks up related charges, the state acquittal does not trigger the new protection.
Uncharged Conduct Is Not Covered
If the government never charged the conduct at all, there is no acquittal to point to, and the behavior can still come in as relevant conduct at sentencing under the ordinary rules.
Judges Keep Discretion Under 18 U.S.C. § 3661
Federal law provides that “no limitation shall be placed on the information” a sentencing court may consider.4Office of the Law Revision Counsel. 18 USC 3661 – Use of Information for Sentencing The Sentencing Commission explicitly preserved that authority. So while a judge cannot use acquitted conduct to set the guideline range, the judge can still reference it when deciding where to land within the range or when varying above it. How aggressively individual judges do that will determine whether the amendment produces real change or just moves the same problem one step down the sentencing process.
It Is Not Retroactive
The Sentencing Commission studied the retroactive impact of Amendment 826 but has not made it retroactive. For the thousands of federal prisoners already serving inflated sentences built on acquitted conduct, the new rule does not, on its own, unlock relief.
Why McClinton Mattered Even Without a Ruling
McClinton petitioned the Supreme Court to declare acquitted conduct sentencing unconstitutional under the Fifth and Sixth Amendments. On June 30, 2023, the Court denied certiorari.2Supreme Court of the United States. McClinton v United States That left the Seventh Circuit’s affirmance of McClinton’s sentence in place and produced no new binding rule.
What the denial did produce was a set of unusually pointed statements from the justices. Justice Sotomayor wrote that acquitted conduct sentencing threatens “the fairness and perceived fairness of the criminal justice system,” described juries as a “bulwark between the State and the accused,” and warned that the practice gives prosecutors “a second bite at the apple with evidence that did not convince the jury coupled with a lower standard of proof.”2Supreme Court of the United States. McClinton v United States Justice Kavanaugh, joined by Justices Gorsuch and Barrett, separately wrote that the practice “raises important questions.” The Court’s stated reason for waiting was that the Sentencing Commission was already considering an amendment. Four justices publicly flagging concerns, combined with the Commission’s active review, is what produced Amendment 826.
If You Were Sentenced Before November 2024
The picture for existing prisoners is harder. Amendment 826 has not been made retroactive as of this writing, the Supreme Court has not overruled Watts, and § 3661 still lets judges consider a wide range of information at sentencing.
The general vehicle for challenging a federal sentence is a motion to vacate under 28 U.S.C. § 2255. These motions carry a one-year filing deadline. For claims resting on a newly recognized constitutional right, the clock runs from the date the Supreme Court recognized the right, and the right must have been made retroactive.5Office of the Law Revision Counsel. 28 US Code 2255 – Federal Custody; Remedies on Motion Attacking Sentence Prisoners who have already filed one § 2255 motion need advance authorization from the Court of Appeals for any second motion, and that authorization is granted only for newly discovered evidence or a new retroactive rule of constitutional law.
Missing the deadline is not always fatal, but equitable tolling requires showing both extraordinary circumstances that prevented timely filing and reasonable diligence throughout. Courts set that bar high. Ignorance of the law, reliance on a jailhouse lawyer, and ordinary attorney error do not qualify; serious attorney misconduct, mental incompetence, or government interference sometimes do.
Courts have discretion to appoint counsel in § 2255 proceedings but are not required to.5Office of the Law Revision Counsel. 28 US Code 2255 – Federal Custody; Remedies on Motion Attacking Sentence Appointments are more common when the court orders an evidentiary hearing or when the legal issues are complex. Many prisoners file initial motions on their own, which makes the deadlines and gatekeeping rules especially unforgiving. If you believe acquitted conduct drove your sentence and you are within the deadline window, consulting a federal criminal defense or post-conviction attorney about your specific record is the practical next step.