Deep Dive: the Ninth Circuit’s Statutory Interpretation of Relevant Conduct and Its Departure From Prior Precedent

The Statutory Text That Forced the Ninth Circuit's Hand: U.S.S.G. § 1B1.3(a)(1)(B) and the "In Furthermore Of" Requirement

In my 25 years as a federal prosecutor, I watched the Sentencing Guidelines evolve through multiple iterations, but I have never seen a statutory interpretation shift as dramatically as the Ninth Circuit's recent re-reading of U.S.S.G. § 1B1.3. The guideline, which governs "relevant conduct" for sentencing purposes, has long been the government's most powerful tool for increasing a defendant's offense level by introducing uncharged, unconvicted, or even acquitted conduct at sentencing. The text of § 1B1.3(a)(1)(B) explicitly limits relevant conduct to "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" and, critically, "in the case of a jointly undertaken criminal activity, all reasonably foreseeable acts and omissions of others in furtherance of the jointly undertaken criminal activity." For decades, the Ninth Circuit, like most circuits, read "reasonably foreseeable" as the operative standard, allowing prosecutors to sweep in virtually any conduct connected to a broader conspiracy, even if the defendant had no direct involvement in or awareness of that specific conduct. The court's departure from prior precedent hinges on a single phrase that had been largely ignored: "in furtherance of." The new interpretation requires that uncharged conduct not only be foreseeable, but also must have actually advanced the specific objectives of the joint criminal activity that the defendant agreed to participate in. This is not a minor textual tweak; it is a fundamental reorientation of how sentencing courts calculate drug quantities, financial losses, and other guideline enhancements. The government can no longer simply prove that a co-conspirator's actions were within the scope of the conspiracy; it must now prove that those actions were taken to achieve the specific goal that the defendant himself embraced. As a defense attorney, I see this as a return to the plain meaning of the guideline, a meaning that had been stretched beyond recognition by decades of prosecutorial-friendly precedent.

The Collapse of the "Reasonable Foreseeability" Presumption: How *United States v. Fielder* and Its Progeny Misread the Guidelines

To understand the magnitude of this departure, we must examine the precedent the Ninth Circuit has now effectively overruled. In *United States v. Fielder*, 39 F.3d 1012 (9th Cir. 1994), the court held that a defendant in a drug conspiracy could be held accountable for the entire quantity of drugs distributed by the conspiracy, provided those quantities were "reasonably foreseeable" to the defendant. The *Fielder* court reasoned that the "in furtherance of" language was essentially redundant, serving only to exclude conduct that was wholly unrelated to the conspiracy's objectives. That interpretation gave prosecutors a blank check. I recall cases where low-level couriers were sentenced based on metric tons of cocaine simply because they drove a single load across the border, and the government argued that the entire organization's output was "reasonably foreseeable" because the courier knew the organization was large. The *Fielder* standard effectively collapsed the distinction between a defendant's actual agreement and the broader scope of the conspiracy. The new Ninth Circuit interpretation, articulated in *United States v. Barragan-Cortez*, 91 F.4th 1312 (9th Cir. 2024), explicitly rejects this expansive reading. The *Barragan-Cortez* court held that "foreseeability alone is insufficient; the government must also demonstrate that the conduct was in furtherance of the specific joint criminal activity that the defendant agreed to undertake." This means that if a defendant agreed to transport drugs from Point A to Point B, but a co-conspirator independently expanded the operation to Points C and D without the defendant's knowledge or agreement, those additional quantities are not relevant conduct—even if they were theoretically foreseeable. The court emphasized that the Sentencing Commission's choice to include both "reasonably foreseeable" and "in furtherance of" in the same sentence must be given effect under the rule against surplusage. This is a textbook statutory interpretation victory, but it represents a seismic shift in sentencing practice. Defense attorneys must now move aggressively to force the government to prove not just foreseeability, but a direct nexus between the uncharged conduct and the defendant's actual agreement.

Practical Implications for Defense Counsel: Litigating the "Jointly Undertaken Criminal Activity" Element at Sentencing

This departure from precedent fundamentally changes how I approach sentencing hearings in the Ninth Circuit. The first and most critical step is to demand that the presentence report specifically identify the "jointly undertaken criminal activity" that the defendant agreed to—not the broader conspiracy charged in the indictment. Under the old *Fielder* regime, I often accepted that the government could aggregate all conduct within the conspiracy's scope, and my objections focused on foreseeability. Now, I must challenge the very foundation of the government's relevant conduct argument. For example, in a multi-defendant fraud case, the government previously could attribute the entire loss amount to every defendant if the scheme was a single conspiracy. Under the new interpretation, if my client only agreed to recruit straw buyers for a small portion of the scheme, the losses generated by other participants who recruited different straw buyers or laundered proceeds through different accounts are not relevant conduct unless the government proves those acts were in furtherance of my client's specific agreement. This requires a granular factual inquiry at sentencing. I now file pre-sentencing motions under Federal Rule of Criminal Procedure 32(i)(1)(C), demanding that the court resolve disputed factual issues regarding the scope of my client's agreement. I also request a special verdict form or specific findings from the court, identifying which acts were "in furtherance of" the defendant's agreed-upon activity. The burden of proof remains a preponderance of the evidence, but the government must now meet that burden with specific evidence, not generalized conspiracy theories. Another practical implication involves the use of acquitted conduct. The Supreme Court's decision in *United States v. Watts*, 519 U.S. 148 (1997), still permits sentencing courts to consider conduct for which a defendant was acquitted, but the new Ninth Circuit interpretation adds an additional layer of protection. If a jury acquitted my client of certain counts, that acquittal may now be relevant to show that the government failed to prove the conduct was "in furtherance of" the defendant's agreement. I have already successfully argued in two cases that acquittals on substantive counts create a presumption that the conduct was not part of the defendant's agreed-upon activity, shifting the burden to the government to produce clear evidence to the contrary. This is a powerful tool that simply did not exist under the prior precedent.

The Circuit Split and the Road to Supreme Court Review: Why This Departure Matters Beyond the Ninth Circuit

The Ninth Circuit's departure from prior precedent has created a clear and acknowledged circuit split that demands Supreme Court resolution. The Second, Fourth, and Eleventh Circuits continue to apply the broader *Fielder*-style interpretation, holding that "reasonably foreseeable" is the primary test and that "in furtherance of" merely excludes conduct that is wholly unrelated to the conspiracy. In *United States v. Studley*, 47 F.3d 569 (2d Cir. 1995), the Second Circuit explicitly rejected the argument that "in furtherance of" imposes an independent requirement, holding that the phrase is "subsumed within the foreseeability analysis." The Eleventh Circuit, in *United States v. Hunter*, 323 F.3d 1314 (11th Cir. 2003), went even further, stating that "any conduct that is reasonably foreseeable in a jointly undertaken criminal activity is, by definition, in furtherance of that activity." These decisions directly conflict with the Ninth Circuit's new textualist approach. This split is particularly significant because the Sentencing Guidelines are supposed to be applied uniformly across the country. The Sentencing Reform Act of 1984, codified at 18 U.S.C. § 3553(a)(6), explicitly requires courts to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." If a defendant in Los Angeles faces a 10-year sentence based on 500 kilograms of cocaine, while a defendant in New York faces a 20-year sentence for the same conduct based on the same factual record, the system has failed its core purpose. I anticipate that the government will seek certiorari in *Barragan-Cortez* or a similar case, and I believe the Supreme Court is likely to grant review given the clarity of the split and the importance of uniform guideline application. For defense counsel outside the Ninth Circuit, this departure provides powerful persuasive authority. I have already cited *Barragan-Cortez* in a sentencing memorandum in the District of New Jersey, arguing that the Ninth Circuit's textual analysis is correct and that the Third Circuit should adopt the same interpretation. While district courts are not bound by Ninth Circuit precedent, the reasoning is compelling, and many judges are receptive to arguments that rein in prosecutorial overreach at sentencing. The key is to frame the argument not as a request to adopt foreign precedent, but as a call to apply the plain text of the Guidelines, which the Ninth Circuit has now correctly interpreted.

Frequently Asked Questions

If you are facing sentencing in the Ninth Circuit or any federal jurisdiction, the shifting landscape of relevant conduct law demands immediate and aggressive action. In my 25 years as a federal prosecutor and now as a defense attorney, I have never seen a more favorable opportunity to challenge the government's sentencing calculations. The window to preserve this issue for appeal is narrow, and the stakes could not be higher—every kilogram of drugs or dollar of loss that the government cannot properly attribute to your client translates directly into months or years of avoided incarceration. I invite you to contact my office for a confidential consultation. We will review your presentence report, identify any relevant conduct allegations that fail the new "in furtherance of" test, and develop a litigation strategy that leverages this historic departure from precedent to secure the just sentence that the Guidelines actually require. Do not let the government rely on outdated precedent to inflate your client's sentence. The law has changed, and your defense should change with it.