Being found not guilty on a charge should mean something. But in both federal and military courts, a “not guilty” verdict on one count can still drive up the punishment on counts where the jury did convict you. This practice — called acquitted conduct sentencing — raises serious constitutional questions under the Fifth and Sixth Amendments, and the rules governing it just changed significantly. Here is what every service member facing court-martial needs to know.

What Is Acquitted Conduct Sentencing at Court-Martial?

Imagine a court-martial panel convicts a service member of assault but acquits him of a more serious charge — say, aggravated assault with a deadly weapon. Common sense says the military judge sentences him only for the assault conviction. But under acquitted conduct sentencing, the judge can use the facts from the aggravated assault charge — the one the panel rejected — to push the assault sentence higher. The panel said “not guilty.” The judge effectively says, “I disagree, and it’s going to cost you.”

Courts justify this by applying a lower evidentiary standard at sentencing. The prosecution must prove guilt at trial beyond a reasonable doubt. At sentencing, a judge only needs to find facts by a preponderance of the evidence — meaning “more likely than not.” The government gets a second bite at the apple, under easier rules, after already losing that charge at trial. Such a practice has not yet been found to violate the Due Process Clause.

What Federal Courts Changed in 2024 — and What They Didn’t

In federal civilian court, the U.S. Sentencing Commission acted. Amendment 826, effective November 1, 2024, now bars federal judges from using federally acquitted conduct to calculate a defendant’s sentencing guidelines range. Commission Chair Reeves stated it plainly: “Not guilty means not guilty.”

But Amendment 826 carries real limits. Federal judges can still consider acquitted conduct when deciding whether to sentence above or below the guidelines range. Acquittals from state or tribal courts receive no protection under this rule. Most importantly for service members: Amendment 826 does not apply to military courts-martial at all. However, there may be an opportunity at court-martial to make an analogy to the federal civilian principles.

How Military Court-Martial Sentencing Works Under the New UCMJ Rules

Military courts recently underwent their biggest transformation since 1950. For offenses committed after December 27, 2023, the court-martial sentencing system now works like this:

• Court-martial members (the jury) decide guilt or innocence — including any acquittals on individual charges.
• The military judge alone decides the sentence — members no longer participate in punishment decisions.
• Each convicted offense receives its own sentence, within a defined parameter range across six offense categories — from Category 1 (0–12 months confinement) up to Category 6 (life with parole eligibility).
• The military judge decides whether sentences run consecutively or concurrently, which dramatically affects total time served.

This offense-by-offense, segmented sentencing system offers more transparency than the old approach, where a single consolidated sentence made it nearly impossible to identify what actually drove the number.

Why Acquitted Conduct Still Influences Military Sentences

Greater transparency does not make the problem disappear. The new UCMJ sentencing system creates three specific pathways through which acquitted conduct can still influence a court-martial sentence.

First — parameter range selection. The military judge selects a confinement point within each convicted offense’s parameter range by weighing aggravating and mitigating factors. Facts from an acquitted charge can quietly serve as aggravating factors that push the sentence toward the top of the authorized range — and no UCMJ rule currently bars this.

Second — upward departure from the parameter range. The military judge can depart above the parameter range by citing “specific facts” that justify it. Those specific facts can draw directly on evidence the panel heard and rejected on the acquitted count.

Third — maximum consecutive sentences. The judge can impose maximum sentences on each convicted specification and run them consecutively — producing a combined total that lands exactly where the acquitted conduct would have placed the sentence anyway.

What Mixed Court-Martial Findings Mean for Your Sentence

The military’s new sentencing system creates a clear written record at sentencing, which strengthens the basis for appeal. But unlike federal defendants protected by Amendment 826, service members facing court-martial currently have no explicit UCMJ rule shielding them from acquitted conduct driving their sentence upward.

Defense counsel must object specifically and forcefully on the record whenever acquitted-conduct facts surface during sentencing — whether through aggravation arguments, departure justifications, or consecutive-sentencing requests. Failing to object can forfeit the issue entirely on appeal.

Congress has not extended acquitted conduct sentencing protections to the UCMJ. Until it does, service members who win a partial acquittal at court-martial remain legally vulnerable to punishment for exactly what the panel said they did not do.

Military Defense Attorneys Who Fight Acquitted Conduct Sentencing — Cave & Freeburg, LLP

A partial acquittal at court-martial is a hard-won victory — but only if your military defense counsel knows how to protect it at sentencing. The experienced military defense attorneys at Cave & Freeburg, LLP understand that mixed findings create an immediate and serious sentencing risk requiring aggressive, specialized advocacy.

When a court-martial returns mixed findings, Cave & Freeburg attorneys act quickly and methodically. They object on the record — specifically and forcefully — whenever the prosecution attempts to introduce aggravation evidence rooted in acquitted conduct. They challenge upward departure justifications that rely on facts the panel already rejected. They contest consecutive sentencing structures designed to recreate punishment for charges the service member was found not guilty of committing. And they build the appellate record from the first day of sentencing proceedings, because a well-preserved objection today protects the client’s rights long after the hearing ends.

Effectively defending against acquitted conduct sentencing demands more than general legal knowledge. It requires deep familiarity with the new UCMJ parameter-and-criteria sentencing framework, the constitutional protections available under the Fifth and Sixth Amendments, and the critical gap between federal court protections and what military courts currently provide to service members.

If you or a family member faces court-martial — particularly on multiple charges — contact Cave & Freeburg, LLP immediately go to court-martial.com for more information.

Speaking of the Supreme Court, two recent rulings by the Justices, Gall and Pepper, made much of considering under federal sentencing law the positive post-offense behavior by a defendant. In this case, it seems the defendant was a model citizen for more than five decades, during which time he apparently served our country in the armed services and served his local community as a police officer.

To some extent military courts already factor positive post-offense service as a sentencing consideration – it can be mitigating and show rehabilitative potential under R.C.M. 1001.

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled “Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence” and is available here via the Florida Law Review. Here is the abstract: After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation. One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing. This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing. Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate. Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.

Quoting Prof. Berman TG.

AS THE NOTE POINTS OUT, THIS IS AN ISSUE UNDECIDED BY THE SUPREMES, but that there is a split among some courts.

Object. You will have to cite to McDonald and George. Unless that is done the client won’t get a (an admittedly difficult to get) shot at the Supremes.

As the sentencing guidelines for child pornography crimes have grown increasingly harsh, a strong trend has developed among federal judges to reject the proposed prison terms as draconian. Now two influential federal appellate courts — the 2nd and 3rd Circuits — have joined the trend and declared that the child pornography guidelines are seriously flawed, or at least that a trial judge wouldn’t be wrong for thinking so.

Here is a related link from SL&P. While not precisely on point I read United States v. Nerad in the context of some push back on what’s to be punished and how severely.

1. Instructions.

A military judge has a sua sponte duty to give certain instructions when reasonably raised by the evidence, even in the absence of a request by the parties. United States v. McDonald, 57 M.J. 18, 20 (C.A.A.F. 2002) (citing R.C.M. 920(e)). Mistake of fact is a special defense that a military judge must instruct court members on sua sponte if reasonably raised by evidence. R.C.M. 916(j); R.C.M. 920(e)(3). Waiver does not apply based on the mere failure to request the affirmative defense instruction or to object to its omission. United States v. Taylor, 26 M.J. 127, 128-29 (C.M.A. 1988). However, the defense can make a knowing waiver of a reasonably raised affirmative defense. United States v. Guitterez, 64 M.J. 374, 376 (C.A.A.F. 2007) (citing United States v. Barnes, 39 M.J. 230, 233 (C.M.A. 1994)). For a waiver to be effective, it must be clearly established that appellant intentionally relinquished a known right. See United States v. Harcrow, 66 M.J. 154, 157 (C.A.A.F. 2008) (citations and quotations omitted).

2. Sentencing. After the defense called witnesses on sentencing to testify as to the accused rehabilitative potential, the prosecution without objection put on a rebuttal case. The issue is to what extent and with what foundation can rebuttal witnesses testify to their disagreement on retention.

a. The court first made the standard “plain error” analysis before getting to the merits of the issue because the defense had not objected at trial.

Based on the foregoing analysis, we find clear and obvious error in the admission of evidence which both lacked foundation and raised command influence concerns, without proper limiting instruction. The evidence conflicted with the guidance set forth in Griggs related to permissible government rebuttal to so-called retention evidence. Griggs, 61 M.J. at 410.

b. This case deals with the situation where the prosecution is seeking to offer rebuttal testimony to testimony that the accused has rehabilitative potential and that a witness would serve with the accused again.

Here, we examine the scope of government sentencing evidence offered in rebuttal to so-called “retention” evidence.

This is different than when the prosecution is first offering rehabilitation evidence.

First, with regard to admission of the testimony of several government rebuttal witnesses, we find the military judge committed error by permitting government rebuttal testimony essentially calling for the panel to discharge appellant without imposing a meaningful foundation requirement or providing a necessary limiting instruction.

A common problem with trial counsel is wanting to offer testimony where the witnesses only basis is that the person has been convicted of the charges. So keep this in mind whenever the prosecution wants to offer testimony as to lack of rehabilitation.

. “Simply stated, the opinion envisioned by R.C.M. 1001(b)(5) can only be expressed by a witness who has a rational basis for his conclusions, founded upon the accused’s service, performance and character.” United States v. Ohrt, 28 M.J. 301, 304 (C.M.A. 1989). See also United States v. Armon, 51 M.J. 83, 86-87 (C.A.A.F. 1999). Logically, that opinion cannot be based principally upon the offense. Horner 22 M.J. at 296 (Testimony was “plainly based not upon any assessment of appellant’s character and potential, but upon the commander’s view of the severity of the offense. Such testimony is simply not helpful to the sentencing authority.”). See also Ohrt, 28 M.J. at 307 (testimony lacked a proper foundation to demonstrate opinion was personalized and based upon the accused’s character and potential).

3. Instructions on sentencing. The court has recommended to COL Henley, the proponent of the Army Benchbook that the following guidance be added.

For evidence offered in extenuation or mitigation You have heard the testimony of [a] witness[es] indicating an opinion regarding [a desire to continue to serve with the accused] [a desire to deploy with the accused] [the accused’s rehabilitative potential]. The opinion of a fellow service member indicating [a desire to continue to serve with] [a desire to deploy with] [the positive rehabilitative potential of] an accused is a matter pertaining to the accused’s character which may mitigate the range of permissible punishments you adjudge. For evidence offered in aggravation or rebuttal The opinion of a witness [that he or she does not wish to continue to serve with the accused] [that the accused should not [deploy with] [or] [return to] the unit] [that the accused has limited rehabilitative potential] is not an aggravating factor and you cannot use that evidence to increase the severity of the accused’s sentence. Concluding Instruction You may not consider such testimony as a recommendation regarding the appropriateness of a punitive discharge or any other specific sentence in the accused’s case. Whether or not the accused should receive the severe punishment of a punitive discharge or any other punishment is a matter for you alone to decide in the exercise of your independent discretion based on your consideration of all the evidence you have heard. No witness may suggest a specific element of punishment or sentence. [This rule does not apply to testimony by the accused regarding personal requests he/she may make in relation to specific punishments.] In evaluating the ability of a witness to comment on the accused’s character, you should consider how well the witness knows the accused, and the nature, quality, and history of contacts the witness has had in determining the value of any opinion the witness may render with regard to the accused.

The issue was prosecution sentencing evidence of other acts toward the victim which had not been charged. Appellant alleged that the military judge failed to conduct a proper 1001 and Mil. R. Evid. 403 balancing test. NMCCA disagreed.

NMCCA found that the military judge properly evaluated the evidence as to its admissibility, including a 403 balancing. The court further found that the military judge correctly gave a limiting instruction to the members on how they could use the additional evidence.

Should military veterans get a break when they are sentenced for crimes?

Asks a piece in the Wall Street Journal. This is interesting in light of some discussion on CAAFLog about sentencing in court-martial and sentence ranges under the UCMJ. Seems some civilian judges are more interested in giving a sentence based on the whole person and individualized rather than a set amount.

“We dump all kinds of money to get soldiers over there and train them to kill, but we don’t do anything to reintegrate them into our society,” says John L. Kane, a federal judge in Denver.

Two weeks ago Kane sentenced a former Iraq war vet, John Brownfield (pictured in Iraq in 2004), to probation rather than prison after he pleaded guilty to illegally selling tobacco to prison inmates when he worked as a correctional officer in 2007. Kane did so despite the fact that Brownfield’s lawyer and the prosecution initially recommended that he sentence Brownfield to a year in prison.

Here’s a WSJ Law Journal piece, which details the proliferation of special criminal courts being set up across the country to keep vets out of prison as well as examples of leniency by federal judges. Click here for Kane’s absorbing 30-page sentencing memo in the Brownfield case.

The phenomenon is stirring up controversy. Some legal experts say singling out veterans risks establishing a two-tier system of justice.