Dismissed-Conduct Still Counts: Eleventh Circuit Clarifies Post-Amendment 826 Sentencing in United States v. Ronald Rieco Shanks

Introduction

On 9 June 2025, the Eleventh Circuit delivered a non-published but highly instructive opinion in United States v. Ronald Rieco Shanks, No. 24-12247. The decision confronts three recurring sentencing flashpoints:

• When does the Government breach a plea agreement by offering “extra-stipulation” evidence?
• Can a district court consider conduct charged in counts that are later dismissed—especially in the wake of the November 2024 addition of § 1B1.3(c) (the “acquitted-conduct” amendment)?
• What degree of reliability must hearsay possess before it supports a Guideline enhancement?

The court affirmed a 40-month sentence imposed on Mr. Shanks, a firearms trafficker who pleaded guilty to two counts of dealing in firearms without a license and making false statements. Shanks argued that (1) the Government broke its plea promise by introducing evidence tied to dismissed counts; (2) the sentencing judge violated U.S.S.G. § 1B1.3 and the Fifth/Sixth Amendments by relying on that dismissed conduct; and (3) the court clearly erred in finding that he knowingly sold guns to a felon because the finding rested on “uncorroborated hearsay.” Each argument failed.

Summary of the Judgment

The panel (Jill Pryor, Lagoa, Brasher JJ.) held:

1. No breach of plea agreement. The stipulation of facts accompanying the plea under § 6B1.4 did not contractually bind the sentencing court or the Government. The plea expressly reserved the court’s discretion and acknowledged that additional evidence could be offered.
2. Dismissed conduct remains “relevant conduct.” New § 1B1.3(c) protects only acquitted conduct, came into force after Shanks’s sentencing, and is a substantive change that does not apply retroactively. The Eleventh Circuit refused to extend the amendment’s rationale to dismissed counts.
3. Hearsay with corroboration is sufficient. The district court permissibly relied on an agent’s recounting of the buyer’s statements, corroborated by contemporaneous text messages, to find that Shanks knew he was selling to a prohibited person.

Analysis

1. Precedents Cited and Their Influence

• United States v. Al-Arian (11th Cir. 2008) – Reinforces de novo review for plea-breach claims; the panel adopts that standard.
• Forbes (11th Cir. 1989) – The backbone of the holding that § 6B1.4 stipulations aid—but never bind—the court. The panel quotes it to defeat Shanks’s “entitlement” argument.
• Erlinger v. United States, 602 U.S. 821 (2024) & Blakely – Recite the constitutional rule: judge-found facts may not raise statutory maxima/minima absent jury findings, but may affect Guidelines if within the statutory range.
• 18 U.S.C. § 3661 – Statutory authority for unlimited sentencing information; cited to rebut any implied waiver in the plea.
• McClinton (2023) & Amendment 826 – Provide the backdrop for the “acquitted conduct” debate; the panel notes that § 1B1.3(c) deliberately omits dismissed conduct.
• Jerchower (11th Cir. 2011), Handlon (11th Cir. 2024), Summers (11th Cir. 1999) – Establish that substantive Guideline amendments do not apply retroactively on direct appeal.
• Zlatogur, Docampo, Hernandez – Confirm that reliable hearsay can support enhancements; rely on corroboration and credibility findings.

2. Legal Reasoning

a. Plea-Agreement Construction

Plea bargains are interpreted like contracts, but through the lens of a “reasonable defendant.” Here, the plea contained: (i) no term limiting “relevant conduct”; (ii) an explicit statement that the court was not limited to the stipulated facts; and (iii) an acknowledgment that either party could introduce additional evidence. Thus, the Government’s choice to seek Guideline enhancements based on dismissed counts was not inconsistent with any contractual promise, and no breach occurred.

b. Relevant Conduct vs. Acquitted Conduct

Section 1B1.3(a) remains broad: all acts that are part of the common scheme count. The November 2024 insertion of § 1B1.3(c) carves out an exception only for acquitted conduct, reflecting the special constitutional weight an acquittal carries (Double Jeopardy and Sixth Amendment concerns). Because Shanks’s counts were dismissed via the plea (not tried to verdict), the new carve-out did not apply—and was a substantive change enacted after sentencing. The panel underscores the Supreme Court’s observation that dismissed or uncharged conduct is “distinct” from acquitted conduct, preserving the long-standing practice of considering such conduct at sentencing.

c. Reliability of Hearsay

The Eleventh Circuit reiterated a three-part test:

1. Indicia of reliability;
2. Explicit (or record-apparent) credibility findings; and
3. Opportunity for defense rebuttal.

The district court credited the agent, found corroboration in text messages, and Shanks cross-examined. Therefore the hearsay was permissible and the § 2K2.1 enhancements (base level 14 and trafficking enhancements) stood.

3. Impact on Future Cases and Firearms Sentencing Jurisprudence

• Plea Negotiations: Defendants in the Eleventh Circuit must draft explicit waivers if they wish the Government to forgo reliance on dismissed counts. A bare stipulation will not suffice.
• Acquitted-Conduct Amendment Cabined: The decision is an early signal that courts may read Amendment 826 narrowly and resist analogizing dismissed or uncharged conduct to acquittals.
• Reliance on Digital Corroboration: Text messages, social-media chats, and similar digital exchanges can rehabilitate hearsay and satisfy reliability thresholds—a practical lesson for prosecutors and defense counsel alike.
• Firearms Cases Post-Amendment 819: The opinion applies both the pre-2023 four-level trafficking enhancement and the current two-level versions, reminding practitioners to track which Guideline manual controls (the one in effect at sentencing).

Complex Concepts Simplified

• Relevant Conduct (§ 1B1.3): The universe of defendant-linked acts the court may consider when calculating the advisory Guidelines. Think of it as “everything logically tied to the offense,” not just the counts of conviction.
• Acquitted vs. Dismissed Conduct:
  • Acquitted: A jury said “not guilty.” Post-Amendment 826, judges cannot use that conduct to raise the Guideline range (unless it overlaps with the offense of conviction).
  • Dismissed: The count vanished before verdict (often via plea agreement). It remains fair game for sentencing because no jury rejected it.
• Preponderance of the Evidence: More likely than not (>50%). The standard governing factual findings at sentencing, far below “beyond a reasonable doubt.”
• Hearsay at Sentencing: Statements made out of court may be considered if they carry “sufficient indicia of reliability”—a lower bar than trial admissibility rules.
• Guideline Amendments – Substantive vs. Clarifying: Clarifying changes apply retroactively on direct appeal; substantive ones do not. An alteration of the Guideline text usually signals a substantive change.

Conclusion

United States v. Shanks reinforces three practical and doctrinal points:

1. The Government does not breach a plea agreement by introducing relevant conduct absent an explicit contrary promise.
2. New § 1B1.3(c) limits the use of acquitted conduct but leaves dismissed or uncharged conduct intact, and courts will not apply the amendment retroactively.
3. Corroborated hearsay—particularly when bolstered by digital evidence—remains a reliable basis for Guideline enhancements.

While unpublished, the opinion delivers an authoritative blueprint for litigants navigating post-Amendment 826 terrain in the Eleventh Circuit. Its message is clear: unless and until Congress, the Sentencing Commission, or the Supreme Court declares otherwise, dismissed counts and trustworthy hearsay continue to shape federal sentences within the statutory range.