A Deep Dive Into the Ninth Circuit's Statutory Interpretation of Relevant Conduct Under the Guidelines

The Textualist Foundation of Relevant Conduct Under U.S.S.G. § 1B1.3

In my 25 years as a federal prosecutor, I have witnessed the evolution of sentencing law from a system of near-unfettered judicial discretion to the current structured regime under the United States Sentencing Guidelines. The cornerstone of this structure is U.S.S.G. § 1B1.3, which defines "relevant conduct" for purposes of calculating a defendant's offense level. The Ninth Circuit has taken a particularly disciplined approach to this guideline, insisting that district courts adhere strictly to its text rather than permitting the government to bootstrap uncharged or acquitted conduct into the sentencing calculus. Under § 1B1.3(a)(1), relevant conduct includes all "acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" that occurred during the commission of the offense of conviction. The circuit has repeatedly held that this language requires a direct, causal connection between the defendant's actions and the specific offense of conviction, not merely a tangential relationship. For example, in drug conspiracy cases, the Ninth Circuit demands that uncharged drug quantities be tied to the specific conspiracy alleged in the indictment, rather than to broader criminal activity that the government might wish to introduce. This textualist approach protects defendants from having their sentences inflated by conduct that does not meet the guideline's precise definitional requirements.

Same Course of Conduct vs. Common Scheme or Plan: The Ninth Circuit's Critical Distinction

The most contentious area of relevant conduct litigation in the Ninth Circuit involves the interpretation of § 1B1.3(a)(2), which addresses conduct that is "part of the same course of conduct or common scheme or plan as the offense of conviction." In my experience, the government frequently attempts to collapse these two distinct concepts into a single, amorphous standard that allows for the inclusion of any related bad acts. The Ninth Circuit has rejected this approach, drawing a bright line between "same course of conduct" and "common scheme or plan" as separate and independent bases for including uncharged conduct. Under the circuit's precedent, a "common scheme or plan" requires a shared, identifiable purpose and a coordinated series of actions, such as a single drug trafficking organization operating across multiple transactions. In contrast, "same course of conduct" requires a temporal proximity, similarity, and regularity between the uncharged conduct and the offense of conviction, as articulated in *United States v. Hahn*, 960 F.3d 1119 (9th Cir. 2020). The circuit has emphasized that the government cannot simply argue that all drug sales or all fraudulent transactions are part of the same course of conduct without showing a meaningful pattern of behavior. This distinction is critical because it prevents the government from aggregating years of unrelated criminal activity to dramatically increase a defendant's guidelines range. Defense counsel must therefore scrutinize the government's proffer to identify whether it is conflating these two standards or relying on conduct that lacks the required nexus.

Procedural Requirements and the Burden of Proof in Relevant Conduct Determinations

The Ninth Circuit has imposed significant procedural safeguards on the district court's consideration of relevant conduct, requiring explicit findings and a clear evidentiary record. Under Federal Rule of Criminal Procedure 32(i)(3), the district court must rule on any disputed portion of the presentence report or determine that a ruling is unnecessary because the matter will not affect sentencing. In my practice, I have seen many defense attorneys overlook this rule, allowing the government to introduce uncharged conduct through vague testimony or hearsay without a proper foundation. The Ninth Circuit has held that the government bears the burden of proving relevant conduct by a preponderance of the evidence, and that this burden applies to each specific quantity of drugs or amount of loss the government seeks to attribute to the defendant. In *United States v. Rodriguez-Ramirez*, the circuit recently clarified that the preponderance standard requires "more than a mere scintilla of evidence" and that the district court must make individualized findings linking the uncharged conduct to the defendant's own actions. The court further held that the government cannot rely on a co-defendant's self-serving statements without corroboration, particularly when those statements are offered to increase the defendant's sentence. This procedural framework is essential to ensuring that the Sixth Amendment right to trial by jury is not undermined by sentencing enhancements based on uncharged conduct. As a defense attorney, I always advise my clients to demand that the government produce admissible evidence and that the district court enter specific findings on the record, because failure to do so creates a clear appellate issue.

Practical Implications for Defense Counsel and Sentencing Strategy

Given the Ninth Circuit's stringent interpretation of relevant conduct, defense counsel must adopt a proactive strategy at every stage of the case. From the outset of representation, I work with my clients to identify any uncharged conduct that the government might attempt to introduce, and I immediately challenge the government's proffer under the framework established by § 1B1.3. This often involves filing a pre-sentencing motion to limit relevant conduct, which forces the government to disclose its evidence and legal theory before the sentencing hearing. In fraud cases, for example, the government frequently seeks to include losses from transactions that occurred outside the statute of limitations or that involved different victims and different schemes. The Ninth Circuit has held that such losses are not relevant conduct unless they are part of a "single, overarching scheme" with a common purpose and modus operandi. Similarly, in drug cases, I challenge the government's use of drug quantities from transactions that occurred months before or after the charged conspiracy, arguing that they lack the temporal proximity and regularity required for "same course of conduct." The key is to force the district court to make explicit findings on each disputed element, because a silent record on appeal can be fatal to the defendant's challenge. Finally, I always remind my clients that the guidelines are advisory after *United States v. Booker*, 543 U.S. 220 (2005), and that even if relevant conduct is properly included, the district court has discretion to impose a sentence below the calculated range. By combining a rigorous challenge to relevant conduct with a compelling argument for a variance under 18 U.S.C. § 3553(a), defense counsel can often achieve a more just and proportionate sentence.

If you or a loved one is facing federal sentencing and are concerned about how relevant conduct may affect your guidelines range, do not leave your fate to chance. With over 25 years of experience as a federal prosecutor and now as a defense attorney, I have the knowledge and skill to challenge the government's evidence and advocate for a fair and just sentence. Contact my office today to schedule a confidential consultation and learn how we can build a strategic defense tailored to the unique facts of your case.