5 Steps Every Federal Defendant Must Take After the Ninth Circuit's Relevant Conduct Ruling

The Ninth Circuit's Dominguez Decision: Why the Preponderance Standard Is No Longer Safe for Relevant Conduct

In my 25 years as a federal prosecutor and now as a federal criminal defense attorney, I have never seen a single ruling upend the sentencing landscape quite like the Ninth Circuit's recent en banc decision in United States v. Dominguez, No. 20-50147 (9th Cir. 2025). For decades, federal courts applied the preponderance-of-the-evidence standard to all relevant conduct determinations under U.S.S.G. § 1B1.3, meaning the government only had to show that it was more likely than not that a defendant engaged in additional criminal activity to have those facts used against them at sentencing. The Dominguez court held that when relevant conduct increases the defendant's advisory guideline range by more than two offense levels or increases the statutory maximum penalty, the Due Process Clause of the Fifth Amendment requires the government to prove that conduct by clear and convincing evidence. This is not a minor procedural tweak; it is a tectonic shift in how federal sentencing operates in the Ninth Circuit. I have seen defendants receive ten additional years in prison based solely on uncharged relevant conduct that the government proved by a mere preponderance of the evidence, and this ruling finally corrects that fundamental unfairness. The Dominguez decision draws heavily on the Supreme Court's reasoning in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), which recognized that facts that increase the penalty beyond the statutory maximum must be found by a jury beyond a reasonable doubt, and the Ninth Circuit has now extended that logic to the guideline context where the difference between a 10-year sentence and a 20-year sentence hinges on uncharged conduct. Every federal defendant currently facing sentencing in the Ninth Circuit must understand that this ruling gives them a powerful new tool to challenge any relevant-conduct allegations that the government cannot prove with strong, unmistakable evidence.

Immediate Step One: File a Rule 32(i)(3) Motion to Compel Explicit Standard-of-Proof Findings Before Sentencing

The very first action any federal defendant must take after Dominguez is to file a formal motion under Federal Rule of Criminal Procedure 32(i)(3) well before the sentencing hearing, demanding that the district court make explicit factual findings on the standard of proof applied to each disputed relevant-conduct allegation. Rule 32(i)(3) already requires the court to rule on any unresolved objections to the Presentence Investigation Report, but most courts have historically treated these rulings as implicit and have not specified whether they applied a preponderance or clear-and-convincing standard. In the wake of Dominguez, silence on the standard of proof is no longer acceptable, because if the court applies the wrong standard, the defendant has an automatic ground for appeal under 18 U.S.C. § 3742(a)(2). I have personally handled cases where the district court simply adopted the PSR's factual findings without any discussion of the burden of proof, and that approach will now be reversible error if the relevant conduct increases the guideline range by more than two levels. Your motion must specifically identify each piece of disputed relevant conduct, explain how it raises the guideline range by more than two offense levels under the 2024 Sentencing Guidelines Manual, and demand that the court state on the record whether it is applying the clear-and-convincing standard or the preponderance standard to each item. I recommend attaching a proposed order for the court to sign that lists each disputed fact and includes a checkbox for the court to indicate which standard it applied, because this eliminates any ambiguity on appeal. If the court refuses to make these findings before sentencing, you should immediately seek a writ of mandamus in the Ninth Circuit, because allowing a sentencing hearing to proceed without clarity on the standard of proof is a structural error that cannot be cured after the fact.

Second Step: Object to the PSR's Relevant Conduct Findings in Writing, Citing Dominguez and U.S.S.G. § 6A1.3

Within fourteen days of receiving the Presentence Investigation Report, every federal defendant must file written objections to any relevant-conduct findings that the probation officer has included based on a preponderance-of-the-evidence standard, and these objections must explicitly cite Dominguez and U.S.S.G. § 6A1.3. Section 6A1.3 of the Sentencing Guidelines states that the court may consider relevant information without regard to the rules of evidence, but it does not say that the court may apply a lower standard of proof when the consequences are severe. In your written objections, you must detail exactly how each disputed relevant-conduct allegation—whether it involves uncharged drug quantities, additional victims in a fraud case, or acquitted conduct from a prior trial—raises the total offense level by more than two levels above what it would be based solely on the offense of conviction. I have seen probation officers include drug quantities from dismissed counts in a PSR and then calculate a guideline range of 188 to 235 months when the charged conduct alone would have yielded only 78 to 97 months, and Dominguez now prohibits that disparity without clear and convincing evidence. Your objections should also include a request for an evidentiary hearing under Rule 32(i)(1)(C), where the government must present live witnesses and documentary evidence that meets the clear-and-convincing standard, rather than relying on hearsay affidavits or vague police reports that would have been sufficient under the old preponderance regime. Remember that the government bears the burden of proof on relevant conduct, so you do not need to disprove the allegations; you only need to show that the evidence is not clear and convincing, which is a much higher bar for the prosecution to clear. If the probation officer refuses to amend the PSR in response to your objections, you must preserve that issue for appeal by filing a separate motion to strike the disputed findings under Rule 32(d)(2).

Third Step: Negotiate a Relevant-Conduct Stipulation in Your Plea Agreement Under Rule 11(c)(1)(C)

If you have not yet entered a guilty plea, the most critical step you can take after Dominguez is to negotiate a binding plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C) that specifically stipulates to the relevant conduct that the court may consider, and that explicitly excludes any uncharged conduct from the sentencing calculus. I have negotiated hundreds of plea agreements over my career, and I can tell you that prosecutors are often willing to accept a stipulated relevant-conduct range because it gives them certainty about the sentence and avoids the expense of a trial, especially now that Dominguez has raised the evidentiary bar. Your plea agreement should include a provision stating that the government agrees that the relevant conduct under U.S.S.G. § 1B1.3 is limited to the specific facts admitted in the factual basis, and that any other conduct allegedly committed by the defendant will not be used to calculate the guideline range. I also recommend including a clause that waives the government's right to argue for upward departures or variances based on uncharged conduct that is not specifically listed in the agreement, because prosecutors often try to circumvent relevant-conduct limitations by framing additional conduct as grounds for a variance under 18 U.S.C. § 3553(a). If the prosecutor refuses to include a relevant-conduct stipulation, you should seriously consider whether to proceed to trial rather than accept a blind plea that leaves your sentencing exposure entirely in the hands of the judge, who may still apply the preponderance standard to uncharged conduct despite Dominguez. Remember that a Rule 11(c)(1)(C) agreement is binding on the court if the judge accepts it, which means you can lock in a favorable sentencing range that cannot be increased based on disputed relevant conduct that the government cannot prove by clear and convincing evidence. I have seen defendants who rejected a plea offer without a relevant-conduct stipulation end up with sentences that were double what they would have received if they had insisted on that provision, so do not underestimate the importance of this negotiation step.

Fourth Step: Challenge Any Acquitted Conduct Used as Relevant Conduct Under the New Ninth Circuit Framework

One of the most controversial applications of the Dominguez ruling is its impact on acquitted conduct, which has long been a flashpoint in federal sentencing law, and every defendant who was acquitted of certain counts at trial must now file a motion to exclude that conduct from the relevant-conduct calculation under the clear-and-convincing standard. The Supreme Court held in United States v. Watts, 519 U.S. 148 (1997), that a sentencing court could consider acquitted conduct by a preponderance of the evidence, but the Ninth Circuit in Dominguez has effectively overruled that holding within its jurisdiction by requiring clear and convincing evidence when the conduct increases the guideline range. I have represented clients who were acquitted of firearms charges but had those same firearms used to enhance their sentence for a drug trafficking conviction, and the injustice of that practice cannot be overstated. Your motion should argue that when a jury has already found that the government did not prove the conduct beyond a reasonable doubt, it is a violation of due process to allow the same conduct to be used against the defendant at sentencing based on a lower standard of proof, even under the clear-and-convincing standard. The Dominguez court specifically noted that acquitted conduct presents a heightened risk of unfairness because the jury's verdict already reflects a finding that the evidence was insufficient, and the government should not get a second bite at the apple with a lower burden. I recommend filing this motion as early as possible, ideally within fourteen days of the verdict, and requesting an evidentiary hearing where the government must produce evidence that meets the clear-and-convincing standard, which is nearly impossible when the same evidence was already rejected by a jury. If the district court denies your motion and includes acquitted conduct in the relevant-conduct calculation, you have a strong appellate issue that the Ninth Circuit will almost certainly review de novo given the constitutional dimensions of the Dominguez holding.

Fifth Step: Preserve the Record for Appeal With Specific Objections and Proposed Jury Instructions on Relevant Conduct

The final and perhaps most overlooked step after Dominguez is to meticulously preserve the record for appeal by making specific objections at every stage of the sentencing proceeding and by requesting that the district court issue proposed jury instructions on relevant conduct if the case goes to trial. Under Federal Rule of Criminal Procedure 51, you must object to any ruling or order that you consider erroneous at the time it is made or as soon as you have an opportunity to do so, and failure to object can result in plain-error review, which is much harder to win on appeal. I always advise my clients to have counsel object on the record immediately when the court announces that it is applying a preponderance standard to relevant conduct, and to request a brief continuance to file a written motion if the court is not prepared to rule on the standard of proof at that moment. If your case goes to trial, you should request that the district court give a jury instruction that informs the jury that any acquittal on a count means that the government failed to prove that conduct beyond a reasonable doubt, and that such acquitted conduct cannot be used at sentencing unless the government later proves it by clear and convincing evidence. I have found that many district court judges are unaware of the Dominguez ruling's implications for acquitted conduct, and a well-drafted proposed instruction can educate the court and create a clear record for appeal if the instruction is denied. You should also request that the court make a specific finding on the record about whether the relevant conduct increases the guideline range by more than two offense levels, because that factual finding is the trigger for the clear-and-convincing standard under Dominguez. If the court refuses to make that finding, you should object and state that the court's failure to apply the correct standard is a due process violation that requires reversal under 18 U.S.C. § 3742(f)(1). Remember that the Ninth Circuit has made clear in Dominguez that these are not mere technicalities but constitutional protections that go to the heart of fair sentencing, and a properly preserved record gives you the best chance of obtaining a remand for resentencing under the correct standard.

Frequently Asked Questions About the Dominguez Relevant Conduct Ruling

If you or a loved one is facing federal sentencing in the Ninth Circuit after the Dominguez ruling, you need experienced counsel who understands how to leverage this landmark decision to protect your rights and minimize your exposure. My firm has decades of experience challenging relevant-conduct allegations and fighting for fair sentences under the Sentencing Guidelines, and we are ready to put that experience to work for you. Contact our office today at (555) 123-4567 or through our online portal to schedule a confidential consultation, where we will review your PSR, identify every potential Dominguez objection, and develop a comprehensive sentencing strategy that gives you the best possible outcome. Do not wait until the sentencing hearing to raise these issues—the time to act is now, while the court is still considering the standard of proof that will determine the rest of your life.