5 Steps to Take Today If Your Federal Case Involves Relevant Conduct After This Ruling

The Pulsifer Earthquake: Why Your Relevant Conduct Analysis Just Collapsed

In my 25 years as a federal prosecutor, I watched the government routinely pile uncharged, unindicted, and often unproven "relevant conduct" onto defendants through the broad language of U.S.S.G. § 1B1.3. The old standard allowed prosecutors to sweep in any act that was "part of the same course of conduct or common scheme or plan" as the charged offense, with little more than a whisper of connection. That era ended on June 14, 2024, when the Supreme Court decided Pulsifer v. United States, 601 U.S. ___ (2024), and fundamentally rewired the causation requirement for relevant conduct under the Sentencing Guidelines. The Court held that for uncharged conduct to be considered relevant under § 1B1.3(a)(2), the government must now prove a direct, but-for causal relationship between that conduct and the offense of conviction, not merely a loose temporal or thematic overlap. This ruling is not a minor tweak; it is a tectonic shift that invalidates thousands of prior Presentence Reports and forces every federal defense attorney to rebuild their sentencing strategy from the ground up. If your case involves any allegation of uncharged conduct—whether it is drug quantities from dismissed counts, financial losses from unindicted transactions, or firearm possession from uncharged incidents—you are sitting on a time bomb that demands immediate action. The window to act is narrow, and the consequences of inaction are catastrophic: you could be sentenced based on conduct that the government can no longer legally prove under the new standard.

Step One: Demolish the Government's Causal Chain with a Formal Rule 32(f)(1) Objection

The first and most critical step you must take today is to file a formal, written objection to every relevant conduct finding in your Presentence Report under Federal Rule of Criminal Procedure 32(f)(1), which gives you exactly 14 days from receipt of the PSR to lodge your challenges. I cannot overstate the urgency of this deadline: if you miss it, you waive all objections to the factual findings, including those that the Pulsifer ruling has now rendered legally insufficient. Your objection must be surgically precise, citing the new but-for causation standard and demanding that the government produce evidence showing that each specific act of uncharged conduct directly caused or was caused by the offense of conviction. For example, if the PSR includes drug quantities from a transaction that occurred three months after your charged offense, you must argue that the government cannot show that transaction was a but-for cause of the charged conspiracy—it was merely subsequent conduct, not causally linked. I have personally reviewed dozens of PSRs since Pulsifer was decided, and in nearly every one, the government had included relevant conduct that now fails the but-for test. Your objection should also invoke the preponderance of the evidence standard under 18 U.S.C. § 3661, but with the added bite that the government must now prove causation, not mere association. Remember, the probation officer who drafted the PSR is not your enemy, but they are also not your advocate; they will not sua sponte apply Pulsifer to your case unless you force them to through a properly framed objection. File that objection today, even if you have to do it pro se while you retain counsel, because the 14-day clock does not pause for attorney shopping.

Step Two: Conduct a Forensic Audit of Every Allegation Under the New "But-For" Standard

Once you have preserved your objections, you must immediately conduct a granular, line-by-line audit of every factual allegation in the PSR, categorizing each piece of uncharged conduct into one of three buckets: conduct that is directly causally linked to the charged offense, conduct that is merely temporally or thematically related, and conduct that has no connection whatsoever. Under the old Eccleston standard, which the Pulsifer Court implicitly overruled, the government could include conduct that was "part of the same course of conduct" if it shared a common victim, a common purpose, or a similar modus operandi—even if separated by months or years. That is no longer the law. Now, you must demand that the government show that the uncharged conduct would not have occurred "but for" the charged offense, or that the charged offense would not have occurred "but for" the uncharged conduct. In my practice, I have already used this standard to strike 47 kilograms of cocaine from a client's relevant conduct calculation because the government could only show that the uncharged transactions involved the same supplier, not that they were causally linked to the charged conspiracy. You must also scrutinize the government's use of "jointly undertaken criminal activity" under § 1B1.3(a)(1)(B), because Pulsifer’s reasoning extends to that subsection as well: the government must now prove that each co-conspirator's conduct was foreseeable to you and within the scope of your agreement, and that it had a but-for causal relationship to the offense. This audit is not a passive exercise; you need to create a spreadsheet that cross-references each factual allegation with the supporting evidence—or lack thereof—and then prepare a motion in limine or a sentencing memorandum that systematically dismantles the government's causal chain.

Step Three: Compel the Government to Disclose Its Causal Evidence Through a Brady and Giglio Demand

Your third immediate action is to serve a comprehensive discovery demand on the government, citing both Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972), specifically requesting all evidence—including grand jury testimony, proffer agreements, cooperator debriefings, and law enforcement reports—that the government intends to use to establish the but-for causal link between your charged offense and any uncharged conduct. The Pulsifer decision has effectively created a new element of proof for relevant conduct, and the government cannot hide behind the old "relevant conduct is not an element of the offense" canard to avoid disclosure. I have already filed three such demands in the past month, and in each case, the government produced documents that actually undermined their own causal theory, including one FBI 302 report that showed the uncharged transaction was initiated by a confidential informant, not by my client. You should also demand disclosure of any statistical or empirical data the government relies on to show that the uncharged conduct was "part of the same course of conduct," because under Pulsifer, temporal proximity alone is insufficient—the government must show a causal mechanism. If the government resists, you must be prepared to file a motion to compel under Federal Rule of Criminal Procedure 16(a)(1)(E), arguing that the Pulsifer ruling has made this evidence material to the preparation of your sentencing defense. Do not accept the government's standard boilerplate response that they have complied with their discovery obligations; demand a specific certification that they have reviewed every piece of evidence in their file for causal relevance. In my experience, the government's initial discovery production is almost always incomplete, and the only way to get the full picture is to litigate the issue aggressively before the sentencing hearing.

Step Four: Build an Affirmative Defense Record That Severs the Causal Nexus

While you are attacking the government's evidence, you must simultaneously build your own affirmative record that demonstrates the absence of any but-for causal relationship between your charged offense and the alleged relevant conduct. This means gathering and preserving every piece of documentary evidence that shows the uncharged conduct was independent, unrelated, or caused by factors entirely separate from your criminal activity. For example, if the government alleges that you committed a fraud in 2022 that is relevant to a 2023 conspiracy, you need to produce bank statements, phone records, and witness affidavits showing that the 2022 transaction was a legitimate business deal that had nothing to do with the later conspiracy. I recently represented a client where the government tried to include $1.2 million in losses from a separate real estate venture as relevant conduct, and we successfully excluded it by producing evidence that the venture was financed by a legitimate loan and that the investor had no connection to the charged scheme. You should also consider hiring a forensic accountant or a financial analyst to prepare a report that specifically addresses the causal relationship—or lack thereof—between the charged and uncharged conduct. Under the Pulsifer standard, the burden of proof remains on the government, but you should not rely on that alone; a well-prepared affirmative defense can shift the court's perception and make it far easier for the judge to exclude the conduct. Additionally, you must identify and interview any witnesses who can testify that the uncharged conduct was independent, including co-defendants who have already been sentenced and may be willing to provide affidavits. Remember, the sentencing judge has broad discretion under 18 U.S.C. § 3553(a), but that discretion is cabined by the Guidelines' definitions, and Pulsifer has now made those definitions far more restrictive.

Step Five: Prepare for a Sentencing Hearing Where You Force the Government to Prove Causation Live

The final step you must take today is to prepare a sentencing hearing strategy that forces the government to put on live testimony—not just proffer through a probation officer—to establish the but-for causal link for every piece of contested relevant conduct. Under Federal Rule of Criminal Procedure 32(i)(3), the court must resolve any disputed portion of the PSR at sentencing, and you have the right to call witnesses and cross-examine the government's declarants. I have found that many federal prosecutors are not prepared to prove causation live, because under the old standard, they could simply rely on the PSR's narrative and a few agent proffers. Now, you must demand that the government produce the case agent, the cooperating witness, or the victim to testify about the specific causal relationship between the conduct and your offense. If the government cannot produce a witness who can articulate a but-for causal connection, you should move to strike the relevant conduct entirely. I also recommend that you prepare a proposed jury instruction on the but-for causation standard for relevant conduct, even though this is a sentencing hearing, because it forces the judge to focus on the legal standard rather than the old, looser framework. In the alternative, you should be ready to argue that even if the government can show some causal connection, the court should exercise its discretion under § 3553(a) to reject the relevant conduct as overbroad or disproportionate to the offense of conviction. The Pulsifer decision has given you a powerful tool, but it is a tool that requires sharpening and aggressive use at the hearing itself, not just in written objections.

If your federal case involves relevant conduct allegations—and nearly every federal drug, fraud, or firearms case does—you cannot afford to wait another day to act. The Pulsifer decision has handed you a powerful legal weapon, but that weapon is useless if it sits in its holster while the 14-day objection clock ticks down and the government locks in its sentencing position. I have spent 25 years on both sides of the federal courtroom, and I know that the difference between a 10-year sentence and a 20-year sentence often comes down to what relevant conduct the judge includes at sentencing. My firm is currently offering complimentary case evaluations specifically focused on Pulsifer’s impact on your PSR, and we will review your Presentence Report, identify every objectionable relevant conduct finding, and prepare a comprehensive sentencing strategy within 48 hours of engagement. Call my office today at (202) 555-0199 or schedule a confidential consultation through our website; your future is too important to leave to chance, and the law has just changed in your favor.