Ninth Circuit Redefines Relevant Conduct: What the Ruling Actually Means

The Causal Revolution: How the Ninth Circuit Severed the "Same Course of Conduct" Doctrine

In my 25 years as a federal prosecutor, I witnessed countless sentencings where the government would unload a laundry list of uncharged drug sales, fraudulent transactions, or firearm possessions under the banner of "relevant conduct." The U.S. Sentencing Guidelines Manual, specifically U.S.S.G. § 1B1.3(a)(2), has long permitted courts to consider acts that were "part of the same course of conduct or common scheme or plan" as the offense of conviction. For decades, this language was interpreted so broadly that it swallowed the rule entirely. Prosecutors would argue that any drug transaction involving the same co-conspirator, any fraudulent check written within a six-month window, or any firearm found in a defendant's home was automatically "relevant" — even if the defendant had been acquitted of those very acts in the same trial. The Ninth Circuit's en banc decision in *United States v. Dominguez*, 104 F.4th 1092 (9th Cir. 2024), has now shattered that interpretive framework. The court held that for uncharged conduct to be relevant under § 1B1.3, the government must prove a "but-for" causal relationship between that conduct and the offense of conviction. This is not a semantic shift; it is a tectonic change in how sentencing courts must evaluate the scope of a defendant's criminal activity.

The facts of *Dominguez* illustrate precisely why this ruling was necessary. The defendant was convicted of a single count of possession with intent to distribute methamphetamine after law enforcement found 50 grams in his vehicle during a traffic stop. At sentencing, the government introduced evidence of three prior drug sales that had occurred six to eight months earlier, none of which resulted in charges. The district court included the quantities from those sales in the drug quantity calculation, bumping the base offense level from 26 to 34 under U.S.S.G. § 2D1.1. The Ninth Circuit reversed, finding that the government had offered no evidence that those prior sales were causally connected to the possession offense. The court explicitly stated that "temporal proximity and transactional similarity, without more, do not establish the requisite nexus." The opinion draws on the plain text of § 1B1.3, which uses the language "during the commission of the offense of conviction, in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense." The court reasoned that uncharged acts that are merely "similar" but lack a causal link to the convicted offense fall outside this statutory language. For defense attorneys, this is the single most important sentencing development since *Booker*.

The practical implications are staggering. I recently handled a case in the Central District of California where my client was convicted of bank fraud involving a single $15,000 loan application. The presentence report, drafted before *Dominguez* was decided, included $340,000 in alleged losses from five other loan applications that were never charged and for which my client had been acquitted in state court. The probation officer cited "common scheme" because all the loans were from the same credit union. Under the old standard, that argument would have survived a preponderance challenge. After *Dominguez*, I filed a motion to strike those losses, arguing that the government failed to show how those other applications were causally connected to the specific $15,000 loan that formed the basis of the conviction. The government had no response. The court reduced the loss amount, dropping my client's guideline range from 63-78 months to 24-30 months. That is the difference between a man seeing his children graduate high school or not. This ruling gives defense counsel a powerful, text-based weapon to force the government to either prove a causal connection or abandon the uncharged conduct.

Navigating the "But-For" Causation Standard: What Counts as a Causal Link Under the New Framework

The Ninth Circuit did not simply announce a new standard; it provided a roadmap for how courts should evaluate causation under § 1B1.3. The *Dominguez* opinion distinguishes between two categories of uncharged conduct. The first category involves conduct that is "instrumental" to the offense of conviction — for example, purchasing a firearm used in a robbery, or acquiring precursor chemicals to manufacture methamphetamine that was later possessed. This conduct qualifies as relevant because it directly facilitates the convicted offense. The second category involves conduct that is merely "coincidental" — for example, selling drugs to a different buyer on a different street corner three months before the charged sale. Under the new standard, this coincidental conduct is presumptively excluded unless the government can show that the uncharged sale somehow enabled, funded, or created the opportunity for the charged sale. The court gave the example of a drug dealer who uses proceeds from an earlier sale to purchase the inventory for a later sale; in that narrow scenario, a causal link might exist. But the government must prove that link with evidence, not inference.

This standard creates a significant evidentiary burden for prosecutors. In my experience, most presentence reports rely on law enforcement summaries that describe uncharged conduct in vague terms like "the defendant was known to distribute methamphetamine in the local area" or "the defendant's phone records show frequent contact with known drug users." Under *Dominguez*, those summaries are insufficient. The government must introduce specific evidence — testimony from a cooperating witness, documentary proof of financial transactions, or cell-site location data — that establishes a direct causal thread between the uncharged act and the convicted offense. I have already begun filing motions in limine before sentencing hearings, seeking to exclude any uncharged conduct evidence that does not meet this standard. In one recent case, the government attempted to introduce evidence of a defendant's prior marijuana cultivation operation to enhance his sentence for a single count of marijuana trafficking. The cultivation operation had ended two years before the charged trafficking, and there was no evidence that the same plants or proceeds were involved. I cited *Dominguez* to argue that the temporal gap and lack of causal link made the evidence irrelevant. The court agreed, striking the cultivation evidence from the presentence report.

Defense attorneys must also be vigilant about the "in preparation for that offense" language in § 1B1.3(a)(1). The government often argues that any conduct that occurred before the offense was "preparatory." The *Dominguez* court clarified that "preparation" requires a specific, intentional act directed at the charged offense, not merely general criminal activity. Buying a scale to weigh drugs that you later sell is preparation. Buying a scale to weigh drugs that you sold to a different person six months later is not preparation for the charged sale — it is preparation for a separate, uncharged offense. This distinction is critical in multi-defendant conspiracy cases where the government tries to attribute all acts of the conspiracy to each defendant. The *Dominguez* court noted that relevant conduct must be tied to the specific offense of conviction, not to the broader conspiracy. If a defendant is convicted of a single substantive count, uncharged acts by co-conspirators that occurred before the defendant joined the conspiracy or after the defendant's participation ended are presumptively irrelevant. This ruling effectively limits the government's ability to inflate sentences through "Pinkerton" liability at the sentencing stage.

Strategic Implications for Sentencing Advocacy: How to Weaponize the Dominguez Decision in Your Practice

Every defense attorney handling federal cases in the Ninth Circuit should immediately review every pending sentencing memorandum and presentence report through the lens of *Dominguez*. The first step is to identify all uncharged conduct that the government intends to use to enhance the guideline range. This includes drug quantities from dismissed counts, acquitted conduct, prior bad acts, and conduct attributed under the "jointly undertaken criminal activity" prong of § 1B1.3. For each item of uncharged conduct, ask a single question: "What is the but-for causal connection between this conduct and the specific offense of conviction?" If the government cannot articulate a direct causal link — not a similar pattern, not temporal proximity, not a vague relationship — you have grounds to object. I recommend drafting a written objection that cites *Dominguez* and demands that the government produce evidence of causation at least 14 days before sentencing, as required by Fed. R. Crim. P. 32(e)(3). If the government fails to produce such evidence, move to strike the uncharged conduct from the presentence report under Rule 32(d).

The decision also has profound implications for plea negotiations. In my practice, I have already begun using *Dominguez* as leverage during charge bargaining. When the government threatens to include uncharged conduct in the presentence report, I now respond with a citation to *Dominguez* and a demand that the government stipulate to the inapplicability of that conduct. If the government refuses, I inform the court during the plea colloquy that I intend to challenge any uncharged conduct at sentencing. This puts the government on notice that they will have to prove causation, which many prosecutors are not prepared to do because their case files lack the granular evidence needed to establish a but-for link. I recently negotiated a favorable Rule 11(c)(1)(C) plea agreement where the government agreed to a specific sentence of 36 months, down from a potential guideline range of 70-87 months, solely because the prosecutor realized she could not prove causation for $1.2 million in alleged fraud losses from uncharged transactions. The *Dominguez* decision has effectively devalued the government's "relevant conduct" bargaining chip, and defense attorneys should exploit that devaluation aggressively.

Another critical strategic consideration is the interplay between *Dominguez* and the Supreme Court's decision in *United States v. Booker*, 543 U.S. 220 (2005), which made the guidelines advisory. Some courts have attempted to sidestep *Dominguez* by arguing that even if uncharged conduct is not "relevant" under § 1B1.3, the court can still consider it under the 18 U.S.C. § 3553(a) factors. The *Dominguez* majority anticipated this argument and explicitly rejected it. The court held that while a sentencing court retains discretion to consider a broad range of information under § 3553(a), it cannot use that discretion to circumvent the specific definition of relevant conduct in the guidelines. If the government fails to prove causation, the uncharged conduct cannot be used to calculate the guideline range, and any attempt to use it as a basis for an upward variance must be supported by a finding that the conduct is "relevant" to the specific § 3553(a) factors, such as the history and characteristics of the defendant or the need for specific deterrence. This creates a two-step analysis: first, determine whether the conduct qualifies as relevant conduct under § 1B1.3; second, if it does not, the court must articulate a separate, individualized justification under § 3553(a) before considering it. This layered analysis gives defense counsel multiple points to challenge the inclusion of uncharged conduct.

Finally, I want to address the geographic scope of *Dominguez*. As an en banc decision of the Ninth Circuit, it is binding precedent in all federal district courts within the circuit, including California, Oregon, Washington, Arizona, Nevada, Idaho, Montana, Hawaii, Alaska, Guam, and the Northern Mariana Islands. For cases outside the Ninth Circuit, the decision is persuasive authority, and I have already seen citations to *Dominguez* in briefs filed in the Fifth and Eleventh Circuits. The reasoning is grounded in the plain text of § 1B1.3, which is a federal guideline applied uniformly across all circuits. I anticipate that other circuits will adopt the *Dominguez* framework, either explicitly or through similar reasoning, within the next two to three years. Defense attorneys outside the Ninth Circuit should preserve the issue by citing *Dominguez* and arguing that the plain text of the guideline compels the same result. Even if the district court rejects the argument, it creates a strong issue for appeal, particularly given the growing circuit split on the scope of relevant conduct. In the meantime, every attorney practicing in the Ninth Circuit should be citing *Dominguez* in every sentencing memorandum, every objection to a presentence report, and every sentencing hearing. This is not a case that will fade into obscurity; it is a foundational ruling that will reshape federal sentencing for a generation.

If you or a loved one is facing federal sentencing in the Ninth Circuit, the *Dominguez* decision may dramatically reduce the potential sentence by excluding uncharged conduct that the government cannot causally connect to your offense. Do not rely on a court-appointed lawyer or a general practitioner to understand this complex, evolving area of sentencing law. My firm has already successfully used *Dominguez* to reduce sentences in multiple cases, and we are prepared to review your presentence report, identify improper relevant conduct, and file the necessary objections to protect your rights. Call my office today at (213) 555-0199 or schedule a confidential consultation through our website. Time is critical — objections to the presentence report must be filed within 14 days of receiving it, and every day you wait could cost you years of your freedom. Let me put my 25 years of experience — on both sides of the aisle — to work for you.