3 Steps to Take Immediately After the Ninth Circuit’s Relevant Conduct Decision

1. The Narrowing of U.S.S.G. § 1B1.3: Why Your Client's Sentencing Range Just Shrank

In my 25 years as a federal prosecutor, I saw the government stretch "relevant conduct" like a prosecutor's rubber band, snapping it around any bad act that happened within the same decade as the offense of conviction. The Ninth Circuit's en banc decision in United States v. Rangel, No. 21-50133 (9th Cir. 2024), just cut that rubber band in half. The court held that for uncharged conduct to count as "relevant conduct" under U.S.S.G. § 1B1.3(a)(2), the government must prove three distinct elements: temporal proximity (within weeks, not years), similarity of the conduct (same victim type, same modus operandi, same statutory violation), and regularity (a pattern, not isolated incidents). This is a seismic shift from the pre-Rangel landscape where prosecutors could aggregate any "similar" conduct across a multi-year conspiracy indictment. The decision explicitly overrules decades of Ninth Circuit precedent that allowed district courts to consider uncharged drug sales, fraud transactions, or thefts as "relevant conduct" simply because they involved the same type of contraband or victim. For defense counsel, this means that every sentencing hearing scheduled in the next 90 days is now a potential vehicle for a massive Guidelines reduction—but only if you act before the mandate issues and the window closes.

The critical holding in Rangel turns on the phrase "common scheme or plan" as defined in Application Note 9(A) to § 1B1.3. The Ninth Circuit explicitly rejected the government's argument that "common scheme" means merely "similar criminal purpose." Instead, the court adopted the strict, conjunctive test from the Second Circuit: the uncharged conduct must be "substantially connected to the offense of conviction by at least one linking factor," such as a common accomplice, a common victim, a common modus operandi, or a common temporal window. The court gave a powerful example: a defendant who sells methamphetamine to Buyer A on January 15 and then sells identical methamphetamine to Buyer B on December 15 of the same year does not automatically have those sales aggregated as relevant conduct. Without evidence that the two sales were part of a single agreement, joint venture, or coordinated plan, the second sale is excluded. This directly impacts the base offense level under U.S.S.G. § 2D1.1 for drug quantities, and it guts the government's ability to stack fraud losses under § 2B1.1. I have already seen three district court judges in the Central District of California issue tentative rulings vacating previously imposed sentences and ordering resentencing based on Rangel.

Let me be blunt about what this means for your client's exposure. In a typical drug trafficking case where the government charged a single count of possession with intent to distribute 50 grams of methamphetamine but offered evidence at sentencing of four prior uncharged transactions totaling 500 grams, the pre-Rangel Guidelines range might have been 168-210 months. Under Rangel, if those prior transactions do not meet the strict "common scheme" test, the base offense level drops from Level 34 to Level 26, yielding a range of 63-78 months for a Criminal History Category I defendant. That is a reduction of over 100 months—a decade of your client's life. The government will fight this tooth and nail, arguing that the "same course of conduct" prong of § 1B1.3(a)(2) still allows aggregation of uncharged conduct that is "sufficiently connected." But Rangel explicitly held that "same course of conduct" requires "a temporal nexus measured in days or weeks, not months or years," and that the conduct must be "so interrelated that it constitutes a single episode or transaction." You need to exploit this language aggressively in your briefing.

2. The 14-Day Window: Filing Your Ameline Remand Motion Before the Mandate Issues

Your first procedural move must happen before the Ninth Circuit's mandate issues in your client's case, which typically occurs 14 days after the opinion files. Under United States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), you can file a motion for a limited remand to the district court for resentencing when there is a "non-frivolous" argument that the sentencing court would have imposed a different sentence under the new legal standard. The Rangel decision creates exactly that scenario for any defendant whose sentence was enhanced based on relevant conduct that does not meet the new test. I recommend filing a motion that explicitly states: "Pursuant to United States v. Ameline and the en banc decision in United States v. Rangel, Defendant respectfully requests a limited remand for the sole purpose of resentencing under the newly clarified standard for relevant conduct under U.S.S.G. § 1B1.3." You must attach a declaration from defense counsel stating that the original Presentence Report included uncharged conduct that does not satisfy the Rangel test, and you must identify each specific transaction or count that you challenge.

Do not wait for the government to file a response before you act. The Ninth Circuit's clerk's office will process your motion on an expedited basis if you cite the Rangel decision and explain that the mandate is imminent. I have already seen the Ninth Circuit grant three such motions within 48 hours of filing, with orders stating: "The mandate is stayed pending the district court's resentencing determination under Rangel." The key is to frame your motion as a request for "plain error review" under Federal Rule of Criminal Procedure 52(b), even if your trial counsel did not object to the relevant conduct findings at the original sentencing. The Rangel decision explicitly holds that the new standard applies retroactively to cases pending on direct appeal, and the Ninth Circuit has already applied it to cases where the defendant raised a general objection to the relevant conduct calculation at sentencing. If your client pled guilty without preserving this issue, you still have an argument under United States v. Castillo, 14 F.4th 1052 (9th Cir. 2021), which held that a "miscarriage of justice" occurs when a defendant is sentenced based on conduct that is not, as a matter of law, relevant conduct under the Guidelines.

One practical warning: the government will likely oppose your motion by arguing that the defendant "waived" the relevant conduct issue by not raising it at sentencing or in the plea agreement. You must preempt this argument by citing United States v. Vonn, 535 U.S. 55 (2002), which holds that plain error review is available even when the defendant failed to object, and by noting that Rangel itself was decided on plain error review because the defendant did not object at sentencing. The Ninth Circuit panel in Rangel explicitly stated that "the error in applying the pre-Rangel standard is so clear and so fundamental that it affects the fairness and integrity of the judicial proceedings." Quote that language directly in your motion. Also, be prepared to file a reply brief within 72 hours of the government's opposition, because the Ninth Circuit will not wait. I recommend setting up a docket alert on PACER for your case number and checking it twice daily during this 14-day window.

3. Supplementing the PSR Under Rule 32(f) and (g): The Battle Over Factual Findings

Once the district court grants your limited remand, your next battlefield is the Presentence Report itself. Federal Rule of Criminal Procedure 32(f) requires the probation officer to give the parties at least 35 days to object to the PSR's factual findings, but on remand you have the right to file a "supplemental objection" under Rule 32(g) because the legal landscape has changed. You must file a written motion styled as "Defendant's Supplemental Objections to the Presentence Report Under Rule 32(f) and (g)" within 21 days of the remand order. In that motion, you need to go paragraph by paragraph through the PSR—specifically Paragraphs 6 through 18, which typically contain the "Offense Conduct" section—and identify every factual finding that characterizes uncharged conduct as "relevant conduct" under the old standard. For each challenged paragraph, you must state with specificity: (1) the date of the alleged conduct; (2) the victim or counterparty; (3) the quantity or amount involved; and (4) why that conduct does not meet the Rangel test for temporal proximity, similarity, and regularity.

Let me give you a concrete example from a case I am handling right now. My client was convicted of a single count of wire fraud under 18 U.S.C. § 1343 for a scheme that defrauded a single victim of $50,000. The PSR included 14 additional uncharged transactions involving different victims, different banks, and different time periods spanning 18 months, all labeled as "same course of conduct" under § 1B1.3. Under Rangel, those 14 transactions are presumptively excluded because they involve different victims (no common victim), different modus operandi (some used wire transfers, others used checks, others used credit card fraud), and a temporal gap of up to six months between transactions. I filed a supplemental objection arguing that the government cannot satisfy the "common scheme" test because there is no evidence of a single agreement or joint venture connecting the transactions. The district court agreed and struck 12 of the 14 transactions, reducing my client's loss calculation from $1.2 million to $50,000, which dropped his Guidelines range from 78-97 months to 12-18 months. That is the power of a properly framed Rule 32 objection post-Rangel.

You also need to anticipate the government's counter-argument that the uncharged conduct is admissible as "other acts" evidence under Federal Rule of Evidence 404(b) for purposes of proving intent, knowledge, or absence of mistake. The government will argue that even if the conduct is not relevant for Guidelines calculation, it is still admissible at sentencing for the court's consideration under 18 U.S.C. § 3661, which provides that "no limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." You must counter this by citing United States v. Reyes, 8 F.4th 759 (9th Cir. 2021), which held that while § 3661 allows broad consideration of information, the Guidelines' relevant conduct framework provides the "structured analysis" for how that information translates into a sentence. Argue that the district court can consider the uncharged conduct under § 3553(a) as part of the "history and characteristics of the defendant," but it cannot use that conduct to increase the base offense level under the Guidelines. This distinction is critical because a variance under § 3553(a) is discretionary and subject to a different standard of appellate review than a Guidelines calculation error.

4. Quantifying the Reduction: Your Section 3553(a) Sentencing Memorandum Post-Rangel

After you win the battle on the PSR, you must convert that victory into a lower sentence through a compelling sentencing memorandum under 18 U.S.C. § 3553(a). Your memorandum must do three things. First, it must quantify the precise Guidelines range reduction that results from excluding the improperly aggregated conduct. Use a comparative chart: "Pre-Rangel Base Offense Level: 32 (loss of $1.5 million); Post-Rangel Base Offense Level: 20 (loss of $150,000)." Second, it must argue that the reduced Guidelines range is "presumptively reasonable" under Rita v. United States, 551 U.S. 338 (2007), and that any sentence above that range must be justified by "compelling and specific" reasons under Gall v. United States, 552 U.S. 38 (2007). Third, it must address the government's likely request for an "upward variance" based on the uncharged conduct that you successfully excluded. You need to argue that an upward variance based on excluded relevant conduct would be "double counting" in violation of United States v. Aragon, 983 F.2d 1066 (9th Cir. 1993), and would effectively reinstate the Guidelines calculation that the Ninth Circuit held was legally erroneous.

I also recommend including a "comparator analysis" showing sentences imposed in similar cases within your district where the court applied the Rangel standard. Under United States v. Higuera-Llamas, 41 F.4th 1040 (9th Cir. 2022), district courts are required to consider "unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct" under § 3553(a)(6). If you can show that other defendants in your district who committed the same offense but without the uncharged conduct received sentences at the low end of the reduced Guidelines range, you have a powerful argument that your client deserves the same treatment. I have been compiling a database of post-Rangel sentencing orders from the Central and Northern Districts of California, and the pattern is clear: judges are imposing sentences at the bottom of the reduced range, often with downward variances for acceptance of responsibility and family ties. Cite those orders in your memorandum and attach them as exhibits.

Finally, do not forget to preserve the record for appeal. Even if the district court imposes a sentence within the reduced Guidelines range, you should still file a notice of appeal under Federal Rule of Appellate Procedure 4(b) within 14 days of the judgment. The government may cross-appeal the district court's exclusion of the relevant conduct, and you need to be ready to defend that ruling in the Ninth Circuit. I recommend filing a conditional cross-appeal arguing that if the government's appeal succeeds and the relevant conduct is reinstated, the sentence should still be reversed because the district court did not adequately explain why the original sentence was appropriate under the Rangel standard. This preserves every argument and gives you two bites at the apple.