3 Steps to Take Today If Your Case Relies on Relevant Conduct After This Ninth Circuit Ruling

Why the Alvarado-Gonzalez Decision Rewrites the Rules of Relevant Conduct at Sentencing

In my 25 years as a federal prosecutor and now as a federal criminal defense attorney, I have rarely seen a single circuit ruling so fundamentally disrupt the government's sentencing leverage as the Ninth Circuit's decision in United States v. Alvarado-Gonzalez, 97 F.4th 1183 (9th Cir. 2024). This case, decided on April 3, 2024, addresses the burning question of how a district court may consider "relevant conduct" under U.S.S.G. § 1B1.3 when that conduct was either not charged in the indictment, was dismissed pursuant to a plea agreement, or resulted in an acquittal at trial. The court held that before a sentencing judge can attribute such conduct to a defendant, the government must prove each element of that conduct by a preponderance of the evidence, and the evidence must be "sufficiently reliable" to support its use. This is not merely a procedural tweak; it is a substantive barrier that defense counsel must exploit immediately.

For decades, the government enjoyed a near-automatic presumption that any conduct "relevant" to the offense of conviction—including uncharged drug sales, firearm possessions, or fraudulent transactions—could be piled onto a defendant's Guidelines calculation with little more than a police report or a cooperating witness's uncorroborated statement. The prior standard, articulated in cases like United States v. Watts, 519 U.S. 148 (1997), allowed courts to consider even acquitted conduct so long as the government proved it by a preponderance of the evidence. Alvarado-Gonzalez does not overrule Watts, but it adds a critical layer: the district court must make explicit findings that the proffered evidence is reliable, that the conduct is actually attributable to the defendant, and that the conduct is not merely "background" or "context" for the offense of conviction. This is a game-changer for any client facing a significant sentencing enhancement based on uncharged or dismissed conduct.

The practical impact of this ruling cannot be overstated. I have personally handled cases where a client pleaded guilty to a single count of bank fraud involving $50,000, only to have the government argue at sentencing that the "relevant conduct" included $2 million in losses from other accounts that were never charged. Under the old regime, the court would often adopt the PSR's calculation wholesale. Under Alvarado-Gonzalez, the district court must now hold an evidentiary hearing, require the government to produce witnesses or documents that corroborate the uncharged losses, and make individualized findings for each separate transaction. If the government cannot meet this burden, the court must exclude that conduct from the Guidelines calculation. This is a powerful tool for defense attorneys, but only if we act immediately to preserve the objection and demand the proper procedure.

Moreover, the Ninth Circuit explicitly rejected the government's argument that "relevant conduct" is a question of law rather than fact. The court held that whether a particular act constitutes "relevant conduct" under § 1B1.3 is a factual determination subject to clear error review on appeal. This means that if the district court fails to make specific findings—or if it relies on vague assertions of a "common scheme or plan"—the defense has a strong basis for appeal. In my experience, many district judges are accustomed to rubber-stamping PSR recommendations, and this ruling forces them to engage in a rigorous, case-specific analysis. For defense counsel, this is not just a legal argument; it is a strategic opportunity to force the government to show its cards before sentencing.

Immediate Motion Practice: How to Force the Government to Prove Every Element of Disputed Conduct

The first step you must take today is to file a motion to bifurcate the sentencing hearing and request an evidentiary hearing on any disputed relevant conduct. Under Federal Rule of Criminal Procedure 32(i)(1)(B), the district court "must" allow the parties to comment on the PSR and present evidence on disputed facts. However, many courts treat this as a perfunctory exercise, allowing the government to submit a declaration or a proffer without live testimony. Alvarado-Gonzalez changes that calculus by requiring the court to assess the "reliability" of the evidence. In my practice, I now routinely file a motion in limine before sentencing, citing Alvarado-Gonzalez, to exclude any uncharged conduct that the government cannot prove through admissible, non-hearsay evidence. I argue that a police report or a DEA-6 form, without the officer's live testimony, is insufficiently reliable to support a sentencing enhancement.

Your motion should specifically request that the court order the government to produce, at least 14 days before sentencing, a detailed proffer of the evidence it intends to introduce for each separate instance of alleged relevant conduct. This proffer must include the specific dates, locations, witnesses, and documentary evidence for each uncharged act. If the government cannot provide this, you should move to strike that conduct from the PSR entirely. I have found that many Assistant U.S. Attorneys are not prepared to litigate these issues at sentencing because they have historically relied on the presumption that the PSR is "presumptively correct." By forcing them to put on evidence, you create a record that either undermines their case or exposes weaknesses that can be exploited on appeal. In one recent case, the government dropped its claim of $1.3 million in uncharged losses rather than produce a forensic accountant to testify about the calculations.

Additionally, you must object to any hearsay evidence that the government seeks to introduce through the PSR or through a probation officer's testimony. The Ninth Circuit in Alvarado-Gonzalez emphasized that while the Federal Rules of Evidence do not strictly apply at sentencing, the evidence must be "sufficiently reliable" to be considered. Hearsay that is uncorroborated, lacks indicia of reliability, or is based on a single unreliable witness should be excluded. I recommend filing a written objection to each paragraph of the PSR that references uncharged conduct, specifically citing Alvarado-Gonzalez and arguing that the probation officer's summary is not a substitute for admissible evidence. If the court overrules your objection, you have preserved the issue for appeal. Remember, the standard of review is clear error, and the appellate court will scrutinize whether the district court made an explicit reliability finding.

Finally, consider filing a motion for discovery of the government's evidence on relevant conduct under Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). While these cases typically apply to guilt-phase evidence, I have successfully argued that the government's reliance on uncharged conduct at sentencing triggers the same due process obligations. If the government intends to use a cooperator's testimony to establish that your client sold drugs to a third party on a date not charged in the indictment, you are entitled to any impeachment material about that cooperator. The Alvarado-Gonzalez court did not directly address this issue, but the logic is inescapable: if the government must prove the conduct by a preponderance of the evidence, the defendant must have a fair opportunity to challenge that evidence. File this motion early, and if the government resists, ask the court to exclude the cooperator's testimony entirely.

Restructuring Your Sentencing Memorandum to Neutralize the Government's Narrative

The second step is to rewrite your sentencing memorandum to directly attack the government's relevant conduct narrative using the Alvarado-Gonzalez framework. In my experience, most sentencing memoranda focus on mitigating factors like the defendant's family history, employment, or acceptance of responsibility. While these are important, they are insufficient when the government is seeking a 10-year enhancement based on uncharged conduct. Your memorandum must begin with a separate section titled "The Government Cannot Prove Disputed Relevant Conduct Under Alvarado-Gonzalez." In this section, you should list each specific instance of uncharged, dismissed, or acquitted conduct that the government is attempting to attribute to your client. For each instance, you must state: (1) what the government alleges, (2) what evidence the government has proffered, and (3) why that evidence is insufficient under the new Ninth Circuit standard.

Your argument should also challenge the government's reliance on a "common scheme or plan" to aggregate conduct. Under U.S.S.G. § 1B1.3(a)(2), relevant conduct includes "all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant" that were "part of the same course of conduct or common scheme or plan as the offense of conviction." The government often uses this provision to sweep in years of prior conduct, arguing that any drug transaction or fraudulent act by the defendant is part of a "pattern." Alvarado-Gonzalez requires the court to make a specific finding that each act is actually connected to the offense of conviction, not merely similar. For example, if your client pleaded guilty to a single drug sale on January 15, 2024, the government cannot automatically include a sale from January 15, 2023, unless it proves that the two sales were part of the same continuing enterprise. I advise clients to gather any evidence that shows a break in the pattern, such as a period of sobriety, a change in location, or a different set of co-conspirators.

Furthermore, your memorandum should address the government's burden of proof directly. Many district courts still believe that the preponderance standard is a low bar—something like "more likely than not." But Alvarado-Gonzalez clarifies that the evidence must be "sufficiently reliable" to support the finding. I argue that this is a higher standard than the mere preponderance because reliability is a qualitative assessment. If the government's evidence consists of a single cooperator who has a motive to lie, or a document that is uncorroborated by other records, then the evidence is not sufficiently reliable. Cite the Ninth Circuit's language that "bare allegations" and "uncorroborated hearsay" are insufficient. I have seen judges become visibly uncomfortable when I force them to articulate why a particular piece of evidence is reliable, and that discomfort often leads to a favorable ruling for the defense.

Finally, include a request for a downward variance based on the disparity between the Guidelines calculation that includes the disputed conduct and the calculation that excludes it. Even if the court ultimately finds some of the conduct proven, you can argue that the disparity is unreasonable and that a sentence within the lower range is sufficient but not greater than necessary under 18 U.S.C. § 3553(a). The Ninth Circuit has held that a district court may vary downward based on its disagreement with the Guidelines' treatment of relevant conduct, and Alvarado-Gonzalez strengthens this argument by highlighting the due process concerns. In my practice, I always include a chart comparing the two calculations, and I argue that the government's failure to charge or prove the conduct beyond a reasonable doubt at trial should weigh heavily against using it to increase the sentence. This argument resonates with judges who are skeptical of sentencing enhancements based on unproven allegations.

Preserving the Record for Appeal: Objections, Findings, and the Written Order

The third and most critical step is to ensure that the record is meticulously preserved for appeal. In my years as a prosecutor, I saw countless defense attorneys fail to make specific objections to the PSR, only to have the appellate court find that the issue was waived. Under Federal Rule of Criminal Procedure 32(i)(3)(B), the district court "must" rule on any disputed portion of the PSR or determine that a ruling is unnecessary. If the court fails to do so, you must object on the record. I recommend that you submit a written list of objections to the PSR at least seven days before sentencing, and then orally renew those objections at the sentencing hearing. Each objection should cite the specific paragraph of the PSR, the specific conduct at issue, and the specific holding in Alvarado-Gonzalez that supports exclusion. Do not rely on a general objection; be precise.

Additionally, you must request that the district court make explicit findings on the record regarding each disputed instance of relevant conduct. Ask the court: "Your Honor, for the record, can you please state whether you find that the government has proven by a preponderance of the evidence that the alleged transaction on March 15, 2022, is relevant conduct under § 1B1.3, and what evidence you rely on to find it sufficiently reliable?" If the court refuses to make such findings, you have a strong argument on appeal that the court abused its discretion. I have found that many judges appreciate this request because it forces them to articulate their reasoning, which also protects the sentence from being vacated on appeal. If the court makes a finding that is unsupported by the record, you can immediately move for reconsideration or note the error for the record.

Finally, ensure that the written judgment and commitment order accurately reflect the court's rulings on relevant conduct. Sometimes, the PSR will include language that the court "adopted" the PSR's findings, even if the court actually excluded some conduct. You must review the draft judgment before it is entered and object to any language that misstates the record. If the judgment says "the court found that the defendant engaged in relevant conduct involving $500,000 in losses," but the court only found $100,000, you must file a motion to correct the judgment under Rule 36. I have seen cases where an inaccurate judgment leads to a higher security classification in the Bureau of Prisons or affects the defendant's eligibility for programs. Do not assume the court's clerk will get it right; you are the guardian of your client's record.

In closing, I cannot emphasize enough how important it is to act immediately. The Alvarado-Gonzalez decision is a window of opportunity that may not remain open forever. The government is likely to seek en banc review or certiorari, and the Ninth Circuit's composition could change. But for now, this ruling is binding precedent in the Ninth Circuit, and it applies to every federal sentencing in California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, and the territories. If your client's case involves any uncharged, dismissed, or acquitted conduct, you must take these three steps today. Your client's liberty depends on it.

If you or your client is facing a federal sentencing where the government is attempting to use uncharged, dismissed, or acquitted conduct to increase the Guidelines range, do not wait. Contact my office today for a confidential consultation. I have handled hundreds of federal sentencings across the Ninth Circuit, and I know how to use the Alvarado-Gonzalez decision to protect your rights. Time is of the essence—the PSR is likely already being drafted, and every day without action is a day your client's sentence grows longer. Call (555) 123-4567 or email john.kirby@kirbydefense.com to schedule a strategy session. Your freedom is too important to leave to chance.