In 2024, the United States Sentencing Commission amended the Federal Sentencing Guidelines to restrict the use of acquitted conduct. Under new U.S.S.G. § 1B1.3(c), relevant conduct “does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.” When the amendment was adopted, Commission Chair Judge Carleton Reeves summed it up this way: “Not guilty means not guilty.”
A recent post on the Sentencing Matters Substack by Jonathan Wroblewski takes a look at how the rule is being applied in practice, including commentary from several additional experts in the sentencing field. Their conversation centers on United States v. Farley, a Fourth Circuit case decided in July (the appellate decision is captioned under the name of Ms. Farley’s codefendant, Covington). United States v. Covington, 180 F.4th 576 (4th Cir. 2026).
Farley was a nurse at a federal prison where an inmate died after a medical crisis. She was charged with a violation of 18 U.S.C. § 242 (willfully depriving the inmate of his Eighth Amendment rights) for her role in the inmate’s care, but the jury acquitted her of that charge and convicted her only of making a false statement to investigators in violation of 18 U.S.C. § 1001. At sentencing, the district court treated her conduct during the crisis as relevant conduct and applied several “adjustments,” while insisting that it was not sentencing her for what she was acquitted of. The Fourth Circuit vacated the sentence. It held that saying the earlier conduct “provided context” for the lie wasn’t enough, and it laid out a three-step framework for deciding when conduct overlapping with an acquitted charge can be used to calculate the guideline range.
Farley’s case is federal, obviously, and so not directly controlling on questions of state law. And the case is specific to calculation of the Guidelines range; the background constitutional rule from United States v. Watts is more permissive. As the Fourth Circuit noted in Farley’s case, “To be sure, once the district court has properly calculated a defendant’s advisory Guidelines range, it has ‘broad discretion to consider various kinds of information’ in fixing the ultimate sentence.” Id. at 595 (citing United States v. Watts, 519 U.S. 148, 151 (1997) (holding that a jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence)).
Nevertheless, the Sentencing Matters discussion caught my eye because the North Carolina Court of Appeals addressed a similar topic in a case this summer. In State v. Simpson, ___ N.C. App. ___ (July 15, 2026) (COA24-1092), officers investigating complaints about drug activity at a public housing complex saw the defendant and her sister smoking marijuana in the defendant’s car. A search turned up two handguns, marijuana, a digital scale, and cash. The defendant was charged with several drug crimes and two counts of carrying a concealed weapon. The jury convicted her of the gun charges, but acquitted her of everything else.
At sentencing, defense counsel asked for a prayer for judgment continued or unsupervised probation. The trial judge declined, saying she couldn’t “ignore the facts of the case, . . . the amount of money, the guns, the vacuum-sealed item, whatever it was.” The judge consolidated the convictions and imposed 30 days, suspended, with 24 months of supervised probation.
On appeal, the defendant argued that the judge improperly considered the facts of the acquitted crimes when deciding how to sentence the conviction. The Court of Appeals disagreed. It noted that the conduct was alleged in the indictment, that the trial evidence placed the defendant in the car with the items, and that the judge’s real concern seemed to be the defendant’s associations. The judge had said she questioned whether the items were even the defendant’s and hoped the defendant had removed herself from the people who were “taking you down the wrong path.” The court concluded: “While we caution against discussing ‘acquitted conduct’ during sentencing, the record does not reflect the trial court improperly considered the acquitted conduct in sentencing Defendant.”
In some contexts, that caution is plainly warranted. Suppose a defendant is charged with armed robbery and the jury convicts only of the lesser included offense of common law robbery. The State could not then ask for an aggravated sentence based on the aggravating factor that the defendant used a deadly weapon. G.S. 15A-1340.16(d)(10). Under Blakely v. Washington, 542 U.S. 296 (2004), and G.S. 15A-1340.16(a1), aggravating factors must be admitted or found by a jury beyond a reasonable doubt. A jury that has just declined to find a dangerous weapon element beyond a reasonable doubt can’t find the deadly weapon aggravator by the same standard.
But a lot of what happens at a North Carolina sentencing hearing is not governed by Blakely principles. The judge selects a minimum sentence within the presumptive range without any required findings. When the sentencing grid authorizes more than one disposition, the judge chooses between active, intermediate, and community punishment in his or her discretion. The judge decides whether sentences run concurrently or consecutively, G.S. 15A-1354(a), and what special conditions of probation to impose, G.S. 15A-1343(b1). In some cases—like Simpson—the judge decides whether a prayer for judgment continued is appropriate.
Is a judge supposed to forget everything he or she just learned at a trial that results in an acquittal, even if it might bear on one of those discretionary decisions? Suppose a defendant is charged with two counts of indecent liberties with a child for offenses against two different victims. The jury convicts on one count but acquits on the other because of a reasonable doubt about whether the second victim had already turned 16 when the offense occurred. Is the judge required to conceptualize the conviction offense as an isolated incident when deciding between prison and probation?
The question of what a judge may consider when exercising sentencing discretion is an old one. In Williams v. New York, 337 U.S. 241 (1949), a jury convicted the defendant of murder and recommended life imprisonment. The judge sentenced him to death, relying in part on a presentence report describing about 30 burglaries the defendant had never been convicted of. The Supreme Court rejected the defendant’s due process challenge, reasoning that a sentencing judge “is not confined to the narrow issue of guilt,” and that “[h]ighly relevant—if not essential—to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.” Id. at 247. Williams is not good law for purposes of the capital punishment analysis, but it hasn’t been overruled on the overall approach to discretionary sentencing.
North Carolina adopted a similar approach in State v. Pope, 257 N.C. 326 (1962), quoting Williams at length. In Pope, the judge reviewed the defendant’s 68 indictments in chambers with officers and learned of gasoline thefts for which no charges had been brought. He then put one of the officers on the stand in open court and questioned him about the uncharged thefts, giving the defendant a chance to cross-examine. The Supreme Court affirmed, explaining that “it would not be in the interest of justice to put a trial judge in a straitjacket of restrictive procedure in sentencing. . . . He should be permitted wide latitude in arriving at the truth and broad discretion in making judgment.” Id. at 335.
I generally read Williams and Pope as allowing a judge to consider a broad range of information when making decisions that aren’t governed by the bright-line Sixth Amendment rule of Apprendi and Blakely. That could include information that came out at a trial that ended in an acquittal—even if that information didn’t add up to a conviction for one reason or another. In the Farley case, using the fact that Farley’s lie concerned a very serious matter—an investigation into a custodial death—to tailor the sentence (possibly permissible) is different from determining her Guidelines range as though she were convicted for causing the death (impermissible under the new Guidelines rule). That distinction may be explored on remand under the framework set out by the Fourth Circuit. In Simpson, the North Carolina Court of Appeals suggests a similar approach. Concern about the defendant’s associations and the “wrong path” was fine. Sentencing her as though she were actually convicted of drug crimes would not have been.
My indecent liberties hypothetical raises a similar distinction. The acquittal there doesn’t necessarily mean the jury doubted the conduct occurred, only that the State failed to prove one element beyond a reasonable doubt. Considering the second victim’s testimony when deciding whether the defendant can be safely supervised in the community looks less like punishment for a crime the jury rejected and more like the information about the defendant’s “life and characteristics” that Williams and Pope contemplate. As Professor Bill Otis argued in his Substack response, “not guilty means not guilty” might sometimes be an oversimplification.
I don’t think there’s a bright line—at least not as a matter of constitutional or North Carolina law. But one would hope, as Professor Steve Chanenson noted in his Substack commentary, that Justice Stevens was correct in his Watts dissent that, whenever evidence from a trial that resulted in an acquittal is used, “Wisdom and experience [will] enable[] the judge to give appropriate weight . . . to evidence of criminal conduct that had not resulted in a conviction.” Watts, 519 U.S. at 160 (Stevens, J., dissenting).
