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Most of the outside criticism of the relevant conduct guideline surrounds the issue of fairness and section (a)(2) which brings into consideration acts not encompassed by a count of conviction that are part of the same course of conduct or common scheme or plan as the offense of conviction.
Critics charge that relevant conduct, and specifically section (a)(2), encompasses too much unconvicted conduct, that sentences can be driven by unconvicted conduct, and as a result the full constitutional protections surrounding the criminal justice system, for practical purposes, are lost.
Because the relevant conduct guideline has been amended so often, and because the concepts underlying the guideline are inherently difficult to apply, amending the guideline when no substantive changes are being made may not clarify or simplify but may simply continue whatever confusion already exists and perhaps create new confusion.
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