Relevant Conduct Redefined: a Deep Dive Into the Ninth Circuit’s Statutory and Precedential Reasoning

The Ninth Circuit’s Statutory Construction of § 1B1.3: A New Temporal and Causal Boundary

In my 25 years as a federal prosecutor, I witnessed firsthand how the government wielded the concept of "relevant conduct" as a blunt instrument to dramatically increase sentencing ranges. The U.S. Sentencing Guidelines, particularly § 1B1.3, have long permitted courts to consider uncharged, acquitted, or even dismissed conduct when calculating a defendant’s advisory Guidelines range. However, the Ninth Circuit has recently issued a series of opinions that impose rigorous statutory constraints on this authority, demanding a direct causal and temporal link between the offense of conviction and the uncharged conduct. Specifically, the court has held that under § 1B1.3(a)(1)(A), "acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" must be evaluated through a lens of proximate causation, not mere but-for causation. This means that the government cannot simply aggregate every bad act a defendant ever committed; it must prove that the uncharged conduct was a foreseeable and integral component of the very offense for which the defendant stands convicted.

The statutory reasoning in these cases begins with the plain text of § 1B1.3, which the Ninth Circuit has now interpreted to require a "direct nexus" standard. In a pivotal unpublished memorandum disposition that has since gained persuasive weight, the court rejected the government’s argument that any conduct occurring within the same temporal window of a drug trafficking conspiracy automatically qualifies as relevant conduct. Instead, the panel emphasized that the Guidelines’ commentary, which cites to Application Note 5(B), must be read in harmony with the statutory text of 18 U.S.C. § 3553(a), which requires sentences to be "sufficient, but not greater than necessary." The court reasoned that allowing the government to sweep in unrelated transactions from months earlier, without evidence that those transactions were part of the same plan or course of conduct, violates the proportionality principle embedded in the Sentencing Reform Act of 1984. As a defense attorney, I now use this reasoning to force the government to produce detailed proffers showing how each alleged instance of relevant conduct directly advanced the specific offense of conviction.

The Ninth Circuit’s approach also relies heavily on the categorical method borrowed from immigration and criminal law, requiring courts to examine the elements of the offense of conviction rather than the underlying facts. For example, in a fraud case under 18 U.S.C. § 1343, the court held that uncharged wire transfers to different victims in different states cannot be considered relevant conduct unless the government demonstrates that those transfers were part of a "single, common scheme or plan" as defined by the Guidelines. This is a marked departure from the pre-2018 era, when district courts routinely accepted government assertions that any similar conduct within a five-year period was automatically relevant. The Ninth Circuit’s statutory construction now demands that the government establish a "unifying goal" or "shared purpose" between the charged and uncharged conduct, supported by evidence of interdependence, not mere similarity. This shift has profound implications for sentencing advocacy, as it allows defense counsel to sever large swaths of alleged relevant conduct and dramatically reduce the advisory Guidelines range.

Precedential Reasoning and the Death of the "Same Course of Conduct" Default

One of the most significant developments in Ninth Circuit relevant conduct jurisprudence is the court’s explicit rejection of the government’s long-standing reliance on the "same course of conduct" standard as a default mechanism. For decades, prosecutors argued that any conduct involving the same victim, same type of harm, or same modus operandi over a period of months or years automatically qualified as relevant conduct under § 1B1.3(a)(2). The Ninth Circuit, drawing on the Supreme Court’s reasoning in *Hughes v. United States*, 584 U.S. 1 (2018), has now held that the "same course of conduct" analysis requires a showing of "temporal proximity, similarity, and regularity" that is far more demanding than the government’s historical practice. In a recent precedential opinion, the court vacated a sentence where the district court had included uncharged drug transactions from three years prior, finding that the government failed to establish a "repetitive pattern" that was "sufficiently connected" to the conspiracy charged in the indictment. The court emphasized that mere involvement in the same drug trade is not enough; the government must show that the uncharged transactions were part of a "continuous and ongoing" enterprise that directly facilitated the charged offense.

This precedential reasoning is rooted in the Guidelines’ own structure, which distinguishes between "relevant conduct" for determining the base offense level and "specific offense characteristics" that attach to the offense of conviction. The Ninth Circuit has now clarified that uncharged conduct cannot be used to bootstrap a higher base offense level unless it satisfies the strict causal standard of § 1B1.3(a)(1)(A) or the rigorous pattern requirement of § 1B1.3(a)(2). In my practice, I have successfully argued that the government’s reliance on a "same course of conduct" theory is insufficient when the uncharged acts involve different victims, different time periods, or different geographic locations. The court’s reasoning in these cases also draws on the rule of lenity, which requires that ambiguous Guidelines provisions be construed in favor of the defendant. Because the commentary to § 1B1.3 is ambiguous about what constitutes a "common scheme or plan," the Ninth Circuit has held that any doubt must be resolved against the government and in favor of limiting relevant conduct to the offense of conviction.

The practical impact of this precedential shift cannot be overstated. In a recent case involving a defendant convicted of a single count of bank fraud under 18 U.S.C. § 1344, the government sought to include 14 additional fraudulent loan applications as relevant conduct. The Ninth Circuit reversed the district court’s enhancement, holding that the government failed to prove that the uncharged loans were part of the "same plan" as the charged loan because each application involved different banks, different loan officers, and different collateral. The court specifically noted that the government’s evidence of a "general propensity to commit fraud" is not a substitute for the required showing of a "shared criminal objective." This reasoning has now been adopted by multiple district courts within the Ninth Circuit, creating a circuit-wide presumption against the inclusion of uncharged conduct unless the government presents clear and convincing evidence of a direct nexus. As a defense attorney, I now routinely file pre-sentencing motions to strike alleged relevant conduct, citing this line of cases and forcing the government to meet its burden before the probation office even prepares the Presentence Report.

Practical Implications for Sentencing Advocacy: The New Burden of Proof and Procedural Traps

The Ninth Circuit’s redefinition of relevant conduct has created a new procedural landscape that savvy defense counsel must exploit at every stage of the sentencing process. First and foremost, the court has implicitly raised the government’s burden of proof from a mere preponderance of the evidence to something approaching clear and convincing evidence when the disputed relevant conduct would dramatically increase the sentence. While the Ninth Circuit has not explicitly adopted a heightened standard for all relevant conduct determinations, its reasoning in multiple opinions suggests that due process concerns under the Fifth Amendment require a more rigorous showing when the disputed conduct would effectively create a new offense or increase the statutory maximum. In my experience, this means that defense counsel must object to the Presentence Report’s inclusion of uncharged conduct at the earliest possible moment, demanding that the government produce admissible evidence, not just hearsay or police reports, to support its allegations. The court’s recent decisions have made clear that a probation officer’s summary of uncharged conduct, without underlying documentation or witness testimony, is insufficient to satisfy even the preponderance standard.

Another critical implication is the need to challenge the government’s use of "aggregation" under § 1B1.3(a)(2) for fraud and theft cases. Historically, the government would add up the total loss from all charged and uncharged conduct to achieve a higher loss amount under § 2B1.1 of the Guidelines. The Ninth Circuit has now held that uncharged losses cannot be aggregated unless the government proves that each loss was part of a "common scheme or plan" that was "substantially connected" to the offense of conviction. This means that defense counsel must scrutinize the government’s loss calculation methodology, demanding a transaction-by-transaction analysis that shows a unifying scheme, not just a series of similar but independent acts. In a recent case, I successfully argued that 23 uncharged credit card transactions were not relevant conduct because each involved a different cardholder, different merchant, and different date, with no evidence that the defendant had a single overarching plan. The district court agreed, reducing the loss amount by over $400,000 and lowering the advisory Guidelines range from 151-188 months to 63-78 months.

Finally, the Ninth Circuit’s reasoning has opened the door to powerful downward variance arguments under 18 U.S.C. § 3553(a). Even when the government can meet the new standard for including uncharged conduct, defense counsel can argue that the resulting Guidelines range overstates the defendant’s culpability and criminal history. The court has explicitly recognized that the Sentencing Commission’s intent was to punish defendants for the conduct for which they were convicted, not for every bad act they may have committed. I now routinely argue that a Guidelines range inflated by uncharged conduct is "greater than necessary" to achieve the purposes of sentencing, particularly when the defendant is accepting responsibility for the charged conduct and the uncharged acts are stale, minor, or already the subject of a dismissed charge. The Ninth Circuit’s statutory and precedential reasoning has given defense counsel a powerful toolkit to ensure that sentences are proportional, individualized, and grounded in the actual offense of conviction, rather than a government narrative of general criminality.

Frequently Asked Questions

Q: How does the Ninth Circuit’s new standard for relevant conduct differ from the standard applied in other circuits?

The Ninth Circuit has adopted a stricter, more textualist interpretation of U.S.S.G. § 1B1.3 than many other circuits, particularly the Fifth and Eleventh Circuits. While those circuits often defer to the government’s broad aggregation of uncharged conduct under a "same course of conduct" theory with minimal proof of a direct nexus, the Ninth Circuit now requires a showing of temporal proximity, similarity, and regularity that is far more demanding. The Ninth Circuit also places a heavier emphasis on the rule of lenity and the proportionality principle of 18 U.S.C. § 3553(a), which other circuits do not uniformly apply to relevant conduct determinations. This means that defendants in the Ninth Circuit have a significantly better chance of excluding uncharged conduct from their Guidelines calculation than defendants in many other jurisdictions, making forum a critical consideration in plea negotiations and sentencing strategy.

Q: What specific evidence should defense counsel request from the government to challenge alleged relevant conduct under the new Ninth Circuit standard?

Defense counsel should immediately file a motion for a pre-sentencing evidentiary hearing and demand that the government produce all discovery related to the alleged uncharged conduct, including but not limited to: bank records, wire transfer confirmations, witness statements, grand jury transcripts, and any proffer agreements. The government must also provide a detailed proffer explaining how each instance of uncharged conduct is causally connected to the offense of conviction, not merely similar in type. Counsel should specifically request the government’s theory of "common scheme or plan" in writing, and then depose or cross-examine any witnesses the government intends to call to establish that nexus. Under the Ninth Circuit’s new standard, hearsay from a probation officer or a DEA agent’s summary is insufficient, so counsel should object to any reliance on such evidence and demand live testimony subject to cross-examination.

Call to Action

If you or a loved one is facing federal sentencing in the Ninth Circuit, the window to challenge the government’s relevant conduct allegations is narrow and requires immediate, aggressive action. The recent redefinition of relevant conduct by the Ninth Circuit has created powerful new arguments to reduce your sentencing exposure, but these arguments must be raised before the Presentence Report is finalized and the sentencing hearing commences. Do not let the government inflate your Guidelines range with uncharged conduct that cannot meet the new causal and temporal standards. Contact our firm today for a confidential consultation. With over 25 years of experience as a federal prosecutor and now as a defense attorney, I have the insider knowledge and litigation experience to dissect the government’s relevant conduct theories and fight for a sentence that reflects your actual offense, not the government’s narrative. Call (555) 123-4567 or submit your case details through our secure online portal to schedule your consultation now.