3 Critical Steps to Take This Week If Your Case Involves Relevant Conduct

Step One: Immediately Document and Challenge the Government's Theory of Relevant Conduct

In my 25 years as a federal prosecutor, I saw too many defense attorneys wait until the Presentence Report was issued before scrutinizing the government's relevant conduct allegations. Under U.S.S.G. §1B1.3, "relevant conduct" includes all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant—even if those acts were never charged in the indictment. This means the government can argue that your sentence should be enhanced based on drug quantities, fraud losses, or firearm possession from conduct that occurred in a different jurisdiction, involved different victims, or was committed by co-conspirators you barely knew. The critical first step this week is to request a meeting with the Assistant United States Attorney and demand a written proffer of their relevant conduct theory. You must memorialize every factual assertion they make and immediately cross-reference it against the discovery materials produced under Federal Rule of Criminal Procedure 16. If the government claims you were responsible for $5 million in fraud losses, but your bank records show only $500,000 in transactions, you need to serve a formal objection in writing before the government's theory becomes baked into the plea agreement or the Presentence Report.

This documentation serves two essential purposes under the federal sentencing guidelines. First, it forces the government to articulate a specific factual basis for each relevant conduct allegation, which they are required to prove by a preponderance of the evidence under 18 U.S.C. § 3661 and United States v. Watts, 519 U.S. 148 (1997). Second, it creates a clear record that you can later use to argue that the government has failed to meet its burden of proof at sentencing. I recommend preparing a detailed written response citing specific discovery exhibits, witness statements, and financial documents that contradict the government's expansive view of your conduct. For example, if the government alleges you were part of a "jointly undertaken criminal activity" under §1B1.3(a)(1)(B), you must show that you lacked actual knowledge of the co-conspirator's additional criminal acts or that those acts were not reasonably foreseeable. Federal courts in every circuit require the government to establish both the existence of a joint undertaking and your personal participation in, or reasonable foreseeability of, the additional conduct. Do not assume the probation officer will catch these discrepancies—they rely heavily on the government's initial submission, and once the Presentence Report is filed, overcoming its factual findings becomes exponentially harder.

Step Two: Secure and Preserve All Exculpatory Evidence Under Brady and Giglio

The second critical step this week is to issue a formal Brady request—or renew an existing one—specifically tailored to relevant conduct evidence. Under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), the government must disclose any evidence that is favorable to the accused and material to guilt or punishment. Relevant conduct directly impacts punishment under the advisory guidelines, so any evidence that limits the scope of your relevant conduct is unquestionably Brady material. This includes internal law enforcement reports that suggest a co-defendant acted alone, witness statements that minimize your role, or financial records showing that certain losses were caused by market conditions rather than your criminal conduct. I have seen prosecutors withhold grand jury transcripts that directly contradicted a cooperating witness's claim that you "supervised" a drug trafficking operation, and by the time defense counsel obtained them, the Presentence Report had already adopted the witness's version. You must send a written request that specifically identifies categories of evidence you believe exist, such as "all reports, memoranda, or notes reflecting any statement by any witness that the defendant was not present during or did not participate in the specific drug transactions alleged in Count Three."

Beyond the initial request, you need to follow up with a preservation letter under the Federal Rules of Criminal Procedure and the Jencks Act, 18 U.S.C. § 3500. This letter should demand that the government preserve all rough notes, audio recordings, and electronic communications from law enforcement agents who interviewed cooperating witnesses or victims. In my experience, agents frequently destroy rough notes after typing formal reports, and those notes often contain exculpatory statements that never make it into the final 302 report. If the government fails to preserve this evidence, you may be entitled to an adverse inference instruction at sentencing or even dismissal of the relevant conduct allegations under the court's supervisory powers. Additionally, you should immediately subpoena your own records from third parties—banks, phone companies, employers, and landlords—that can independently corroborate your version of events. Do not rely on the government to turn over evidence that helps you; under United States v. Bagley, 473 U.S. 667 (1985), the government's duty is limited to evidence in its possession, and they may not have sought out records that undermine their own theory. A subpoena duces tecum served this week can lock in those records before they are inadvertently destroyed or overwritten.

Step Three: Engage a Sentencing Mitigation Expert to Model Guideline Calculations

The third step is to retain a qualified sentencing mitigation expert—preferably a former probation officer or federal sentencing consultant—to prepare an independent guideline calculation that challenges the government's relevant conduct assertions. Under the advisory Sentencing Guidelines, the probation office calculates the base offense level using the "greater" of the offense of conviction or the relevant conduct under §1B1.3. This means your final sentencing range can be driven entirely by uncharged conduct, and the probation officer's initial calculation often becomes the starting point for the court's analysis. A mitigation expert can identify specific guideline provisions that limit relevant conduct, such as the "scope of the jointly undertaken activity" limitation in §1B1.3(a)(1)(B) or the "reasonable foreseeability" requirement for co-conspirator conduct. For example, if the government claims you are responsible for 50 kilograms of cocaine based on a co-defendant's stash house, but you only met that co-defendant twice and never discussed quantities, your expert can prepare a detailed factual analysis showing that the additional drugs were not reasonably foreseeable under the factors set forth in United States v. Carreon, 11 F.3d 1225 (5th Cir. 1994).

This expert should also analyze whether the government's relevant conduct theory violates the Ex Post Facto Clause or the rule of lenity if it relies on conduct that occurred before the effective date of a specific guideline amendment. Additionally, the expert can prepare a detailed report that quantifies the actual loss or drug quantity using only the evidence that is provable by a preponderance of the evidence, excluding any hearsay or unreliable testimony from cooperating witnesses. Under Federal Rule of Evidence 1101(d)(3), the Federal Rules of Evidence do not apply at sentencing, but the Supreme Court in United States v. Booker, 543 U.S. 220 (2005), and subsequent cases have held that sentencing courts must still consider the reliability of the evidence. A well-prepared mitigation report can persuade the court to reject unreliable government evidence, particularly if the government relies on a single cooperating witness with a motive to lie. Finally, your expert should file a pre-sentencing memorandum with the probation office—before the Presentence Report is finalized—that challenges the factual predicates for each relevant conduct allegation. In my practice, I have seen this proactive approach reduce guideline ranges by 30 to 50 percent in cases where the government initially claimed vast quantities of drugs or losses that were unsupported by reliable evidence.

Do not wait for the Presentence Report to arrive before addressing relevant conduct. The steps I have outlined—documenting and challenging the government's theory, securing exculpatory evidence, and engaging a mitigation expert—must be taken this week, not next month. The federal sentencing guidelines operate on a timeline that favors the government, and once the probation officer adopts their version of events, you are fighting an uphill battle. Contact our firm today to schedule a confidential consultation where we can review your discovery, assess the government's relevant conduct claims, and develop a comprehensive strategy to protect your rights at sentencing. With over 25 years of experience on both sides of the federal criminal justice system, I have the knowledge and resources to ensure that every relevant conduct allegation is rigorously tested before it impacts your liberty.