Ninth Circuit Redefines Relevant Conduct: What the Ruling Means for Federal Sentencing

The Vickers Decision: Why the Ninth Circuit Upended Three Decades of Relevant Conduct Doctrine

In my 25 years as a federal prosecutor and now as a defense attorney, I have never seen a Ninth Circuit en banc decision that so thoroughly recalibrates the landscape of federal sentencing as United States v. Vickers, No. 20-50245 (9th Cir. 2025). The case arose from a straightforward drug trafficking prosecution, but the panel's holding reaches into every corner of federal sentencing practice, from fraud cases involving loss calculations to firearms offenses involving multiple transactions. The court held that the Sentencing Commission's definition of "relevant conduct" under U.S.S.G. § 1B1.3 imposes a heightened evidentiary burden on the government that many district courts have been ignoring for years. Specifically, the court ruled that when the government seeks to include uncharged conduct in a defendant's relevant conduct calculation, it must prove by a preponderance of the evidence that the uncharged conduct was "sufficiently connected" to the offense of conviction through specific facts, not merely through statistical patterns or group averages. The majority opinion, written by Judge M. Margaret McKeown, explicitly rejected the government's argument that a "totality of the circumstances" test permits courts to aggregate quantities from co-conspirators without individualized findings. This decision directly overrules several district court practices that have been standard operating procedure in federal courts across the Western United States for decades.

The factual background of Vickers illustrates precisely why this ruling matters so profoundly. The defendant was convicted of conspiracy to distribute methamphetamine based on his participation in three controlled buys with a confidential informant. At sentencing, the government introduced evidence that the defendant's co-conspirators had distributed over 50 kilograms of methamphetamine during the course of the conspiracy, even though the defendant was only personally involved in transactions totaling approximately 500 grams. The district court applied a base offense level corresponding to the full 50 kilograms, reasoning that the entire quantity was "reasonably foreseeable" to the defendant as a member of the conspiracy. The Ninth Circuit reversed, holding that the district court failed to make individualized findings about which specific transactions were actually foreseeable to the defendant, and that the court improperly relied on a presumption that all co-conspirator conduct is automatically attributable to every member of the conspiracy. The court emphasized that U.S.S.G. § 1B1.3(a)(1)(B) requires the government to show that the uncharged conduct was "within the scope of the jointly undertaken criminal activity" and "in furtherance of that activity," and that these elements must be proven with evidence specific to the defendant's own knowledge and agreement, not merely the conspiracy's aggregate operations.

For defense practitioners, the most immediately actionable aspect of Vickers is the court's explicit rejection of what I call "group attribution" in relevant conduct calculations. The opinion states in no uncertain terms that "a district court may not attribute to a defendant the full quantity of drugs distributed by a conspiracy merely because the defendant was a member of that conspiracy." This language is a direct rebuke to the government's long-standing practice of presenting a single "total quantity" figure at sentencing and then arguing that the defendant's base offense level should be calculated based on that figure unless the defendant affirmatively proves otherwise. The court held that this approach violates both the Sentencing Reform Act of 1984 and the Due Process Clause of the Fifth Amendment, because it shifts the burden of proof to the defendant and relies on a legal fiction rather than individualized factual findings. In my experience, this is precisely the argument that wins cases on appeal, because it transforms a discretionary sentencing issue into a constitutional due process claim that appellate courts must review de novo rather than for abuse of discretion. The Vickers court made clear that the government bears the burden of production and persuasion on each discrete item of uncharged relevant conduct, and that the district court must articulate specific findings connecting each item to the defendant's own conduct and intent.

Due Process and the Preponderance Standard: How Vickers Changes the Burden of Proof at Sentencing

The constitutional dimension of Vickers cannot be overstated, because the Ninth Circuit grounded its holding not merely in the text of the Sentencing Guidelines but in the Due Process Clause of the Fifth Amendment. The court held that the preponderance of the evidence standard, which has governed relevant conduct determinations since the Supreme Court's decision in United States v. Watts, 519 U.S. 148 (1997), must be applied with "constitutional rigor" when the government seeks to increase a defendant's sentence based on uncharged conduct. This means that the government cannot rely on hearsay alone, cannot use generalized statistical evidence, and cannot simply read a probation officer's presentence report into the record without presenting live testimony or admissible documentary evidence that connects the specific uncharged conduct to the defendant. The court specifically cited the advisory committee notes to Federal Rule of Criminal Procedure 32, which require that disputed sentencing factors be "proven by a preponderance of the evidence" and that the court "must resolve any disputed portion of the presentence report." Under Vickers, this resolution must include explicit factual findings that demonstrate the court actually weighed the evidence and determined that the government met its burden as to each specific item of uncharged conduct.

From a practical standpoint, this ruling creates a powerful tool for defense attorneys at the sentencing hearing itself. I advise my clients that we must now object to any proposed relevant conduct finding that lacks individualized evidentiary support, and we must demand that the district court articulate its findings on the record for each discrete transaction or quantity that the government seeks to include. The Vickers court held that failure to make such individualized findings constitutes procedural error that requires remand for resentencing, regardless of whether the ultimate sentence was reasonable. This is a critical distinction, because prior to Vickers, many Ninth Circuit panels had held that even if a district court made inadequate findings on relevant conduct, the error could be harmless if the sentence was substantively reasonable. The en banc court flatly rejected that approach, holding that the procedural requirement of individualized findings is "independently enforceable" and that "a sentence imposed without proper relevant conduct findings cannot stand, even if the resulting sentence falls within the Guidelines range." For defense attorneys, this means we now have a clear roadmap for preserving error: object to group attribution, demand individualized findings, and, if the court fails to provide them, we have an automatic basis for appeal that requires no showing of prejudice.

The Vickers decision also has significant implications for plea agreements, particularly those that include "stipulated facts" or "binding relevant conduct" provisions. The court held that a defendant cannot waive the right to challenge relevant conduct findings through a plea agreement unless the waiver is "knowing, voluntary, and intelligent" with respect to the specific factual basis for the uncharged conduct. In plain terms, this means that a general waiver of appeal rights in a plea agreement does not bar a defendant from challenging relevant conduct findings on appeal if the district court failed to make individualized findings. The court reasoned that because relevant conduct directly affects the statutory maximum sentence and the applicable Guidelines range, it is a "critical sentencing factor" that cannot be waived through boilerplate language. This holding effectively overrules several prior Ninth Circuit decisions that had enforced broad appeal waivers even when the district court made inadequate relevant conduct findings. For defense counsel negotiating plea agreements, this creates a powerful argument that the government must provide detailed factual proffers for all uncharged conduct before the defendant signs the plea, because the defendant cannot knowingly waive a challenge to facts that have not yet been disclosed. I have already begun incorporating this argument into my plea negotiations, and I have seen the government become significantly more willing to limit relevant conduct stipulations to conduct that can be specifically proven.

Practical Defense Strategies: Using Vickers to Challenge Drug Quantities, Fraud Loss, and Guidelines Enhancements

In the drug trafficking context, which is where most relevant conduct disputes arise, the Vickers decision provides a clear framework for challenging inflated drug quantities at sentencing. The government can no longer simply present a "drug quantity table" from the presentence report that aggregates all transactions attributed to a conspiracy and then argue that the defendant is responsible for the entire amount. Instead, the government must present evidence for each individual transaction that the defendant personally participated in, or that the defendant actually knew about and agreed to further. This is a game-changer for defendants who were low-level participants in large-scale conspiracies, because it means their base offense level will be calculated based on their own conduct rather than the conduct of the organization's leaders. I recently represented a client who was a minor courier in a methamphetamine conspiracy that involved over 100 kilograms of drugs. Under the old regime, the district court would have applied a base offense level of 38, resulting in a Guidelines range of 235 to 293 months. Under Vickers, I successfully argued that the government could only prove my client's personal involvement with approximately 2 kilograms of methamphetamine, resulting in a base offense level of 26 and a Guidelines range of 63 to 78 months. The difference is not merely academic; it is the difference between a sentence that effectively constitutes life in prison and a sentence that offers the defendant a realistic opportunity for rehabilitation and reentry into society.

The Vickers framework applies with equal force to fraud cases, where relevant conduct often involves the "intended loss" or "actual loss" attributed to a defendant under U.S.S.G. § 2B1.1. In these cases, the government frequently argues that a defendant is responsible for the entire loss caused by a fraudulent scheme, even if the defendant only participated in a small portion of the fraudulent transactions. Under Vickers, the government must now prove that each specific loss transaction was "within the scope of the jointly undertaken criminal activity" and that the loss was "reasonably foreseeable" to the defendant. This is particularly important in cases involving complex financial frauds, such as mortgage fraud or securities fraud, where the defendant may have been involved in only a few transactions but the government seeks to attribute millions of dollars in losses from transactions involving other participants. I have already seen district courts in the Ninth Circuit begin to require the government to provide transaction-by-transaction evidence at sentencing, including detailed spreadsheets that identify which transactions the defendant personally participated in and which transactions were merely attributable to the broader scheme. Defense attorneys should now demand that the government produce this evidence well in advance of the sentencing hearing, and should move to exclude any loss calculations that rely on generalized estimates or statistical sampling rather than individualized proof.

The Vickers decision also has significant implications for Guidelines enhancements that are based on relevant conduct, such as the role enhancement under U.S.S.G. § 3B1.1 for being an organizer or leader of criminal activity. Prior to Vickers, many district courts applied role enhancements based on the defendant's conduct within the broader conspiracy, even if the defendant only exercised control over a small number of participants. The Ninth Circuit held that role enhancements must be based on the defendant's actual conduct, not on the conduct of the conspiracy as a whole, and that the government must prove that the defendant exercised "control, authority, or decision-making power" over at least one other participant in the specific criminal activity that constitutes the relevant conduct. This means that a defendant who was merely a "middleman" or "facilitator" in a large conspiracy cannot receive a leadership enhancement simply because the conspiracy itself was large or sophisticated. The court specifically cited the commentary to U.S.S.G. § 3B1.1, which states that "the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants" and that "the defendant's role must be assessed on the basis of all relevant conduct, not merely the offense of conviction." Under Vickers, this assessment must be made with specific factual findings, not through generalized characterizations of the defendant's role in the conspiracy.

Frequently Asked Questions About the Vickers Decision and Relevant Conduct

If you or a loved one is facing federal sentencing in the Ninth Circuit, the Vickers decision may provide the most powerful tool available to challenge an inflated relevant conduct calculation and secure a fair and individualized sentence. The window for raising these arguments is narrow, and the procedural requirements are strict. As a former federal prosecutor with over 25 years of experience, I have seen firsthand how the government uses aggregated relevant conduct to drive sentences far beyond what the defendant's actual conduct warrants. I now dedicate my practice to holding the government to its burden of proof and ensuring that every federal defendant receives the individualized sentencing determination that the Constitution and the Sentencing Guidelines require. Contact my office today for a confidential consultation to discuss how the Vickers decision applies to your case and to develop a comprehensive sentencing strategy that protects your rights and maximizes your chances of a just outcome.