An Empirical Study of the Application of the Relevant Conduct Guideline §1B1.3

Abstract

The relevant conduct guideline has been called the cornerstone of the guideline system.1 Its primary purpose is to ensure that disparate charges and plea bargains do not lead to disparate sentences for offenders who engage in essentially the same behavior. In cases of collaborative criminal activity, the guideline provides crucial definitions of what conduct of others will be attributed to a particular defendant. Conduct of others may be considered whether or not the conduct was charged as a conspiracy and whether or not the defendant was convicted of it, so long as it falls within the guide line's definitions. In cases such as drug trafficking and fraud?where a defendant's offense level, and hence sentence, is determined by adding together the amount of drugs or money involved?the relevant conduct determination is especially critical. In drug cases, sentences have ranged from probation to life without parole, depending on the amount of drugs included within the defendant's relevant conduct.2 The Judicial Conference's Committee on Criminal Law noted several problems that arise from the oper ation of this guideline.3 Sentences imposed, espe cially on low-level participants in drug trafficking offenses, are sometimes vastly disproportionate to the defendant's culpability. This often results from mandatory minimums required by statute, but it can also result from the inclusion in a defendant's rele vant conduct of amounts of drugs or money involved in a larger conspiracy or operation in which the de fendant played only a minor part. In addition, pro bation officers have reported significant confusion over what is meant to be included within a defen dant's relevant conduct. Obviously, if the guideline is applied differently to defendants who engage in similar conduct, unwarranted disparity will result. Given these concerns among others, the Judicial Conference Committee on Criminal Law asked the