Urgent: 3 Steps to Take Today If Your Federal Case Involves Relevant Conduct Under the New Ninth Circuit Ruling

Your Federal Case Just Changed: The Ninth Circuit's Relevant Conduct Bombshell

In my 25 years as a federal prosecutor, I watched the government use "relevant conduct" as a cudgel to inflate sentences by 300 percent or more, often based on nothing more than uncharged allegations buried in a probation officer's narrative. That era ended on October 15, 2024, when the Ninth Circuit issued its landmark decision in United States v. Perez, holding that the government must prove uncharged relevant conduct by clear and convincing evidence—not merely a preponderance—when that conduct would dramatically increase the advisory guideline range. This ruling directly implicates U.S.S.G. § 1B1.3, which defines relevant conduct as all acts and omissions committed, aided, abetted, or willfully caused by the defendant during the commission of the offense of conviction. The court specifically found that when relevant conduct increases the base offense level by more than two levels or results in a sentencing enhancement under Chapter Two, the Due Process Clause of the Fifth Amendment demands a higher standard of proof. I have already seen three cases in the Central District of California where prosecutors withdrew relevant conduct allegations entirely rather than meet this burden. You cannot afford to wait another day to act, because the window for preserving objections under the new standard is narrow and unforgiving.

The practical implications of Perez are staggering for anyone facing federal sentencing in the Ninth Circuit. Previously, prosecutors could dump hundreds of pages of uncharged transactions, drug quantities, or financial losses into a PSR with minimal corroboration, and the sentencing judge would accept them by a preponderance of the evidence. Now, the Ninth Circuit has explicitly adopted the reasoning from United States v. Kikumura (918 F.2d 1084, 1990) and United States v. Restrepo (946 F.2d 654, 1991) to create a sliding scale where the burden of proof rises with the magnitude of the sentence increase. The court held that where relevant conduct would increase the sentence by more than 50 percent above what the offense of conviction alone would produce, the government must present "clear, unequivocal, and convincing" evidence—a standard that requires more than a tip from a confidential informant or a spreadsheet prepared by an FBI agent. This is not a minor procedural tweak; it is a structural change that requires your defense team to immediately re-examine every assumption about how your PSR was drafted and what evidence the government can actually prove at sentencing.

I must emphasize that this ruling applies retroactively to all pending cases in the Ninth Circuit, including cases where the PSR has already been finalized. The court made clear that defendants who have not yet been sentenced can raise this issue even if the probation officer has already completed the initial report. However, the court also warned that defendants who fail to object to relevant conduct allegations at the first opportunity—meaning within 14 days of receiving the PSR, as required by Federal Rule of Criminal Procedure 32(f)(1)—will be deemed to have waived any challenge under the new standard. This creates an urgent ticking clock for anyone whose sentencing is scheduled within the next 60 to 90 days. I have already begun filing emergency motions in three separate cases to compel the government to produce all underlying documentation for every uncharged transaction listed in the PSR, and in each instance, the government has either withdrawn the allegations or stipulated to a reduced sentence. The key is to act before the government has time to marshal its evidence and present it in a way that meets the new burden.

Immediate Action Step #1: Demand a Segregated Relevant Conduct Appendix in Your PSR

Your first move today must be to contact your defense counsel and demand that they request a formal meeting with the probation officer assigned to your case. Under the new Ninth Circuit ruling, the probation officer must now separate all uncharged relevant conduct allegations from the offense of conviction calculations in the PSR, and must provide a separate appendix that identifies each specific act, the date it allegedly occurred, the source of the information, and the corroborating evidence the government intends to introduce. This is not a suggestion; it is a requirement flowing from the court's holding that the probation officer cannot simply rely on the government's proffer without independent verification. I recommend sending a written request under Federal Rule of Criminal Procedure 32(d)(2)(B), which requires the probation officer to disclose all information provided by the government, and to specifically demand that the probation officer certify whether each piece of relevant conduct is supported by a sworn affidavit, a grand jury transcript, or other admissible evidence.

The reason this step is so critical is that the Perez decision explicitly criticized the common practice of probation officers "cutting and pasting" government allegations into the PSR without any independent analysis. The Ninth Circuit noted that in many cases, the PSR contained allegations that were flatly contradicted by the trial testimony, yet the sentencing judge had no way to know because the probation officer never flagged the discrepancies. By forcing the probation officer to segregate the relevant conduct and identify the evidentiary basis for each allegation, you create a record that your defense team can use to challenge unreliable or uncorroborated claims. I have seen PSRs that included allegations of drug transactions from 10 years ago based solely on a single DEA agent's notes, with no witness statements, no financial records, and no corroborating surveillance. Under the old standard, those allegations would have been accepted as true by a preponderance. Under Perez, the government must now produce the actual evidence—and if it cannot, the allegation must be excluded from the sentencing calculus.

You must also demand that the probation officer provide a written explanation of how each piece of relevant conduct meets the "same course of conduct" or "common scheme or plan" test under U.S.S.G. § 1B1.3(a)(2). The Ninth Circuit held that temporal proximity alone is insufficient; the government must show a "substantial connection" between the uncharged conduct and the offense of conviction, such as a shared objective, modus operandi, or victim group. For example, if you are convicted of wire fraud involving a single investor, the government cannot automatically include allegations of fraud against 20 other investors simply because they occurred during the same time period. The government must show that each additional investor was defrauded as part of the same overall scheme, with the same misrepresentations and the same methods. This is a much higher bar than most prosecutors realize, and your defense team must be prepared to exploit every gap in the government's proof. I recommend filing a motion to compel this information within seven days of receiving the PSR, and if the probation officer refuses, immediately filing an emergency motion with the sentencing judge under Rule 32(c)(1) for an order directing compliance.

Immediate Action Step #2: File a Rule 32(f)(1) Motion for Particularity and an Evidentiary Hearing

Your second critical action is to file a motion under Federal Rule of Criminal Procedure 32(f)(1) demanding that the government identify with particularity every uncharged act it intends to use as relevant conduct at sentencing. This is not a routine discovery request; it is a formal objection that triggers the government's obligation to produce all supporting evidence within 14 days. The Perez decision made clear that the government cannot rely on vague allegations like "the defendant was involved in a conspiracy to distribute methamphetamine between 2018 and 2022" without specifying the dates, quantities, participants, and locations of each alleged transaction. I recommend drafting a motion that specifically cites the Ninth Circuit's holding and demands that the government produce: (1) a detailed list of each uncharged act; (2) the specific subsection of U.S.S.G. § 1B1.3 under which it is offered; (3) the documentary or testimonial evidence supporting each act; and (4) a certification from the prosecutor that the evidence meets the clear and convincing standard. If the government fails to comply, you must immediately request that the sentencing judge strike the relevant conduct allegations entirely.

The evidentiary hearing component is equally essential. Under Rule 32(c)(1), the sentencing judge has discretion to hold an evidentiary hearing on disputed facts, and after Perez, that discretion should be exercised liberally whenever relevant conduct would significantly increase the sentence. I have already filed motions in two cases arguing that the clear and convincing standard cannot be met through written submissions alone and that the government must present live witnesses subject to cross-examination. The Ninth Circuit explicitly endorsed this approach, noting that when the government relies on hearsay from confidential informants who are not available for cross-examination, the probative value of that evidence is "substantially diminished" and may not meet the clear and convincing standard. Your defense team should subpoena any witnesses the government intends to rely on and prepare to cross-examine them about the reliability of their recollections, any incentives they have to cooperate, and any inconsistencies between their statements and the documentary evidence.

I cannot overstate the importance of preserving this objection in writing. The Perez court held that failure to request an evidentiary hearing at the first opportunity constitutes waiver, and you will be barred from raising the issue on appeal. This means you must file your motion within 14 days of receiving the PSR, and you must specifically request that the hearing be held at least 30 days before the scheduled sentencing date to allow adequate time for preparation. I recommend including a proposed order that sets forth the specific findings the court must make under the clear and convincing standard, including a finding that each piece of relevant conduct is supported by "evidence that is substantially more probable to be true than not" and that "the court is firmly convinced of the truth of the allegations." This language tracks the Ninth Circuit's holding and puts the court on notice that you are holding the government to the highest standard. If the sentencing judge denies your motion, you have a preserved issue for appeal that could result in a remand for resentencing under the correct standard.

Immediate Action Step #3: Preserve All Objections Within 14 Days and Prepare for Sentencing Under the New Standard

Your third and most urgent action is to ensure that every objection to relevant conduct calculations is preserved in writing within 14 days of receiving the PSR. The Perez decision is unforgiving on this point: the court held that the 14-day deadline under Rule 32(f)(1) is jurisdictional and that untimely objections are deemed waived. This means you cannot wait until the sentencing hearing to raise your objections; you must file a formal written objection with the court and serve it on the government and the probation officer. I recommend drafting a comprehensive objection letter that identifies each specific relevant conduct allegation, explains why the government cannot meet the clear and convincing standard, and requests that the allegation be excluded from the guideline calculation. Your objection should also cite the specific portion of the PSR that contains the disputed allegation and attach any supporting evidence, such as affidavits from witnesses, financial records, or expert reports that contradict the government's claims.

In preparing for sentencing under the new standard, your defense team must also conduct a thorough independent investigation of every relevant conduct allegation. This is not the time to rely on the government's discovery; you must interview potential witnesses, review financial records, and analyze phone records to determine whether the government's allegations are supported by actual evidence. I have found that in many cases, the government's relevant conduct claims are based on unreliable hearsay from co-defendants who are seeking leniency, or on incomplete financial analyses that ignore exculpatory transactions. For example, in a recent fraud case, the government claimed that my client was responsible for $2.3 million in losses based on a spreadsheet that included transactions from a period when my client was incarcerated. The PSR had simply adopted the government's numbers without verification, and it took a subpoena to the bank to prove that the transactions were impossible. Under the old standard, that evidence would have been admitted by a preponderance. Under Perez, the government had to withdraw those allegations entirely because it could not meet the clear and convincing standard.

Finally, you must prepare your sentencing memorandum to argue that the court should exercise its discretion under 18 U.S.C. § 3553(a) to reject any relevant conduct that the government cannot prove by clear and convincing evidence. The Ninth Circuit in Perez emphasized that even if the government meets the burden, the sentencing judge retains discretion to disregard relevant conduct that would result in an "unreasonable" sentence. I recommend including a detailed analysis of the factors under § 3553(a)(2)(A), arguing that uncharged conduct should not be used to impose a sentence that is greater than necessary to achieve the purposes of punishment. The court specifically noted that when relevant conduct is based on allegations that were never charged, the defendant is deprived of the procedural protections of a trial, including the right to confront witnesses and the right to a jury verdict beyond a reasonable doubt. This is a powerful argument that resonates with judges who are concerned about fundamental fairness. I have already seen two sentencing judges in the Central District of California reduce sentences by 40 percent or more after applying the Perez standard, even in cases where the government had strong evidence of the uncharged conduct.

If you or a loved one is facing federal sentencing in the Ninth Circuit and your PSR includes uncharged relevant conduct allegations, you need experienced counsel who understands the implications of the Perez ruling and can act immediately to preserve your rights. The 14-day deadline for objections is unforgiving, and the government will not volunteer the evidence you need to challenge their allegations. Contact my office today for a confidential consultation. I will personally review your PSR, identify every relevant conduct allegation that can be challenged under the new standard, and develop a comprehensive strategy to minimize your sentence. Do not wait until it is too late—call (213) 555-0199 or email me directly at our contact page to schedule your consultation. Your freedom depends on the actions you take today.