Acquitted Conduct Revisited: Mmmmm… Flavors of Evil


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If you wanna feel really dim, spend an hour or so trying to debate the fine points of federal constitutional law with Prof. Doug Berman and Mark Allenbaugh.  We had to come back to the issue of how the guidelines condone using charges where a client goes to trial and a jury finds her not guilty, against them at a later sentencing proceeding.  

The Supreme Court had the opportunity to strike down this constitutionally offensive practice, but punted to the sentencing commission.  They currently have no plans to address it, so reach out to them and tell them to do it!

Today, though, the most spirited debate focused on the distiction between “acquitted conduct” and “relevant” or “uncharged” conduct.  

If you’re not a lawyer, this bare-knuckle brawl between two legal giants and the 5th and 6th Amendments may be a pass for you. Or maybe you’ll love it just because of all the screaming.

All I know, is 1) the debate is really important 2) I love spending time with these gentlemen, and 3) you need to reach out to the sentencing commission to get them to settle this shit once and for all.

Ding, Ding.



  • Whether a client should have right to demand that a JURY make the determination as to whether certain sentence enhancements apply;
  • Whether the burden of proof should be beyond a reasonable doubt for sentencing enhancements;
  • Whether there is any meaningful constitutional distinction, between acquitted and uncharged conduct;
  • Whether statutory ranges are too broad, allowing punishment to be untethered to counts of conviction;
  • What can we do about all of it?


Mark Allenbaugh & Alan Ellis – LAW 360 Article:  Supreme Court Must End Acquitted Conduct Sentencing, July 19, 2023.



Contact the Sentencing Commission!


Ep. 36: Presumed Guilty: Using Acquitted Conduct at Sentencing:

Berman’s Sentencing Law and Policy Blog:


Mark Allenbaugh:

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