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The U.S. Sentencing Commission on Wednesday voted to restrict the controversial practice of considering acquitted conduct in federal sentencing, and floated the possibility of applying the change retroactively.

After years of failed congressional action and inaction by the U.S. Supreme Court, the seven-member commission voted unanimously to prohibit judges from using acquitted conduct to increase the sentences of defendants who receive mixed verdicts at trial.

However, the commission chaired by U.S. District Judge Carlton Reeves of the Southern District of Mississippi was divided on whether to consider enforcing the limitation on acquitted conduct sentencing retroactively. A majority of commissioners voted to give notice of a possible vote in the future on making the acquitted conduct changes retroactive, and to prepare a retroactivity impact analysis.

The issue of whether to make the commission's amendments retroactive has been met with fierce opposition from some commissioners, the Department of Justice and others, as evidenced by last year's decision to retroactively apply changes to the guidelines that allow a reduction for defendants who were sentenced as first-time offenders absent certain aggravating factors. 

Under the current guidelines, and pursuant to the Supreme Court's 1997 decision in , a verdict of acquittal doesn't prevent a sentencing judge from considering the conduct underlying the acquitted charge, as long as the judge concludes it was proved by a preponderance of the evidence — or, more likely than not — as opposed to a jury's much higher standard of proof beyond a reasonable doubt.

The acquitted conduct amendment comes with a rather large caveat. Judges are already allowed to consider conduct that is relevant to the offense of conviction, and now the commission says acquitted conduct cannot be considered as relevant conduct for the purposes of guidelines calculation, "unless such conduct also establishes, in whole or in part, the instant offense of conviction."

In a public meeting of the panel on Wednesday, Commissioner Claire Murray, a former Department of Justice official and associate White House counsel during the Trump administration, noted before the vote that judges may also still use acquitted conduct at sentencing when considering the so-called 3553A factors — a series of topics that judges must contemplate at sentencing in addition to the guidelines, including the nature and circumstances of the offense and the history and characteristics of the defendant.

Last year, the Supreme Court declined to take up several cases challenging the practice of acquitted conduct sentencing, saying it would first let the Sentencing Commission reassesses the contentious practice, Justices Sonia Sotomayor, Brett Kavanaugh, Amy Coney Barrett and Neil Gorsuch said the use of acquitted conduct to alter the range of the federal sentencing guidelines "raises important questions."

The commission on Wednesday also voted to promulgate an amendment to the guidelines concerning the impact of loss, specifically, actual loss or intended loss, which is meant to shore up its position that loss can mean intended loss. The change comes in response to the Third Circuit's 2022 decision in .

For economic crimes, the recommended sentence under the guidelines increases — often dramatically in white collar cases — based on the amount of loss resulting from the offense. Commentary from the commission that accompanies this section of the guidelines states that loss can be both actual loss or intended loss, whichever is greater.

However the Third Circuit in Banks cited its 2021 en banc decision in U.S. v. Nasir and concluded that "if the Sentencing Commission's commentary sweeps more broadly than the plain language of the guideline it interprets, we must not reflexively defer."

Concluding that the commission's commentary expands the definition of loss beyond its ordinary meaning of actual loss, the Banks court held that the commentary should be afforded no weight.

The loss amendment moves the section in the commentary stating that loss can mean intended loss from the commentary to the text of the guidelines, in order "to ensure consistent loss calculation across circuits."

Similarly, the loss amendment moves the rule allowing the use of the gain from the offense as a substitute for loss from the commentary to the guidelines.

Other amendments the commission passed include allowing judges to depart downward from the guidelines when sentencing young people and a clarification for gun crimes sentencing where the firearm has an altered or obliterated serial number.

Absent congressional action, the amendments go into effect on Nov. 1.

--Editing by Linda Voorhis.