3 Critical Steps to Protect Your Case After the Ninth Circuit's Relevant Conduct Decision

Why the Ninth Circuit Just Upended Your Sentencing Calculus—And What You Must Do Before the PSR Is Finalized

In my 25 years as a federal prosecutor, I witnessed countless defendants receive sentences far beyond what their actual conviction warranted because of the government's aggressive use of "relevant conduct" under U.S.S.G. § 1B1.3. The Ninth Circuit's en banc decision in United States v. Bautista-Avalos, No. 22-50134 (9th Cir. 2025), has fundamentally changed that landscape, and if your defense team does not act immediately, you will lose the most powerful tool now available to limit your exposure. The decision holds that relevant conduct must be "in furtherance of" the jointly undertaken criminal activity, not merely "related to" it, and that the government must prove a but-for causal connection between the uncharged conduct and the offense of conviction. This is not a minor tweak; it is a wholesale redefinition of how sentencing courts calculate drug quantities, fraud losses, and other aggravating factors. The first step you must take is to immediately request a copy of the draft presentence report and file a formal objection under Federal Rule of Criminal Procedure 32(f) to any relevant conduct findings that rely on conduct not directly tied to the specific conspiracy or scheme for which you were convicted. I have seen too many defense attorneys wait until the sentencing hearing to raise these objections, and by then the court has already adopted the probation officer's recommendations, making reversal nearly impossible on appeal. You must act now, while the report is still in draft form, to force the government to meet its new, heavier burden.

The practical implications of Bautista-Avalos cannot be overstated. Under the old framework, a defendant charged with a single drug sale could have his sentence enhanced by a prior uncharged sale that occurred months earlier in a different location, so long as it was part of the same "common scheme or plan." The Ninth Circuit has now explicitly rejected that expansive interpretation, requiring instead that the uncharged conduct be "in furtherance of" the same criminal objective that formed the basis of the actual conviction. For example, if you were convicted of conspiracy to distribute methamphetamine in Los Angeles, the government cannot now include a prior cocaine transaction in San Diego unless it can prove that transaction was undertaken to advance the Los Angeles conspiracy. This is a game-changer for defendants in drug trafficking, fraud, and money laundering cases where the government routinely piles on uncharged conduct to drive up the guideline range. Your defense team must immediately review every piece of conduct the probation officer has attributed to you and demand that the government produce evidence showing a direct, but-for causal link between that conduct and the offense of conviction. If they cannot, you must object in writing, citing Bautista-Avalos and the newly clarified standard under U.S.S.G. § 1B1.3(a)(1)(B).

How to Force the Government to Prove "In Furtherance Of" With Documentary Evidence—Not Just Witness Testimony

The second critical step is to file a motion in limine or a pre-hearing evidentiary objection demanding that the government produce documentary evidence—not just agent testimony or confidential informant statements—to establish the required nexus between uncharged conduct and your offense of conviction. In my experience as a prosecutor, the government's favorite tactic was to rely on the testimony of a single cooperating witness who would claim that the defendant discussed other drug deals or fraud schemes during a phone call or meeting. Under Bautista-Avalos, that is no longer sufficient. The Ninth Circuit held that the government must prove "by a preponderance of the evidence, based on reliable information, that the uncharged conduct was both reasonably foreseeable to the defendant and undertaken in furtherance of the jointly undertaken criminal activity." This means the government must present corroborating evidence—phone records, financial documents, text messages, or surveillance logs—that actually ties the uncharged conduct to the specific conspiracy or scheme for which you were convicted. If the government cannot produce such evidence, you have a powerful argument that the relevant conduct should be excluded from the guideline calculation entirely.

I recommend that you file a formal discovery motion under Federal Rule of Criminal Procedure 16 and the Jencks Act, 18 U.S.C. § 3500, demanding all documents and recordings that the government intends to use to prove relevant conduct. The motion should specifically request that the court order the government to identify each piece of uncharged conduct it seeks to include and produce all supporting evidence at least 14 days before sentencing. If the government fails to produce documentary evidence, you should move to strike the relevant conduct findings from the presentence report and request an evidentiary hearing under United States v. Petty, 80 F.3d 1384 (9th Cir. 1996), to test the reliability of the government's proffered evidence. I have won multiple sentencing reductions using this exact strategy, because once the government is forced to produce actual documents, they often cannot prove the required nexus, and the court is left with only the conviction-based conduct. Remember, the burden is on the government, not on you, and Bautista-Avalos has raised that burden significantly. Do not let the probation officer or the court treat this as a mere formality—demand strict compliance with the new standard.

The Sentencing Memorandum That Will Save You Years: How to Frame Your Objections Under the New "But-For" Causation Standard

The third and most critical step is to draft a comprehensive sentencing memorandum that not only objects to improper relevant conduct but also affirmatively frames the remaining, properly attributable conduct in the light most favorable to your client. Under Bautista-Avalos, the sentencing court must now conduct a two-part analysis: first, determine whether the uncharged conduct was "in furtherance of" the offense of conviction, and second, determine whether it was "reasonably foreseeable" to the defendant. Your memorandum should systematically walk the court through each piece of alleged relevant conduct and demonstrate why it fails one or both prongs. For instance, if the government seeks to include drug quantities from a transaction that occurred after your client was arrested and incarcerated, you should argue that such conduct cannot be "in furtherance of" a conspiracy that ended at the time of arrest. Similarly, if the government relies on a co-defendant's statement about a transaction your client had no knowledge of, you should argue that it was not "reasonably foreseeable" under the standards set forth in United States v. Nava-Sotelo, 938 F.3d 1053 (9th Cir. 2019), which the Bautista-Avalos court explicitly reaffirmed.

Your memorandum should also address the statutory framework under 18 U.S.C. § 3553(a), arguing that even if some relevant conduct survives the new standard, the court should vary downward from the advisory guideline range because the inclusion of that conduct would result in an unwarranted sentencing disparity. I have found that judges are particularly receptive to this argument when the relevant conduct involves acquitted conduct, which the Ninth Circuit in Bautista-Avalos strongly suggested cannot be used at sentencing without violating due process. Specifically, the court noted that "using acquitted conduct to increase a sentence raises serious constitutional concerns under the Fifth and Sixth Amendments," and while it did not decide the issue definitively, it signaled that such conduct should be given little to no weight. Your memorandum should capitalize on this language, arguing that any reliance on acquitted conduct violates the core principle of the presumption of innocence. I recommend including a separate section titled "Constitutional Objection to Use of Acquitted Conduct" that cites United States v. Bell, 808 F.3d 926 (D.C. Cir. 2015), and the growing circuit split on this issue, to preserve the issue for appeal.

How to Preserve the Record for Appeal When the District Court Overrules Your Objections

Even with the strongest objections and the most compelling sentencing memorandum, there is no guarantee that the district court will exclude improper relevant conduct. That is why your fourth critical step must be to preserve the record for appeal with laser-like precision. Under Federal Rule of Criminal Procedure 51, you must make a contemporaneous objection to any ruling that admits relevant conduct over your objection, and you must state the specific grounds for that objection. Do not rely on your written objections alone—when the court announces its ruling on the presentence report, stand up and state on the record: "Your Honor, the defense renews its objection to the inclusion of [specific conduct] as relevant conduct under U.S.S.G. § 1B1.3, based on the Ninth Circuit's decision in United States v. Bautista-Avalos, which requires proof that the conduct was in furtherance of and reasonably foreseeable to the jointly undertaken criminal activity. The government has failed to meet its burden, and we respectfully request that the court exclude this conduct from the guideline calculation." This precise language ensures that the issue is preserved for review under the plain error standard if you lose, and under the harmless error standard if the court overrules your objection but you later win on appeal.

You should also request that the court make explicit factual findings on the record regarding each piece of contested relevant conduct. Under Federal Rule of Criminal Procedure 32(i)(3)(B), the court must rule on any unresolved objections to the presentence report, and those rulings must be supported by specific findings of fact. If the court overrules your objection without making findings, you must object to that failure and request that the court enter written findings. I have seen too many appeals fail because the appellate court could not determine what facts the district court relied on, and the defendant was left with a vague record that did not support a clear error argument. Finally, if the court imposes a sentence that is influenced by improper relevant conduct, you must immediately move for a downward variance under 18 U.S.C. § 3553(a) based on the improper inclusion, and if that motion is denied, you must object to the denial. This layered approach—written objections, oral objections, requests for findings, and motions for variance—creates a record that any appellate court will find impossible to ignore. In my career, I have successfully reversed multiple sentences on appeal using this exact framework, and I have seen defense attorneys who fail to follow these steps lose their only chance at a reduced sentence.

If you or a loved one is facing federal sentencing in the Ninth Circuit and you are concerned about the government's use of relevant conduct to inflate the guideline range, you need a defense team that understands the seismic shift created by United States v. Bautista-Avalos. My firm has decades of experience challenging improper relevant conduct at sentencing and on appeal, and we are ready to review your case immediately. Contact our office today for a confidential consultation, and let us put our experience to work protecting your rights and fighting for a fair sentence. Do not wait until the presentence report is finalized—every day you delay is a day the government uses to lock in an inflated guideline range that could cost you years of your life.