The United States Sentencing Commission recently adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five (5) years. The proposed amendments would serve to change federal sentencing in several significant respects, some of which are discussed more fully herein. While these amendments would not become effective until November of 2023, defense attorneys should be well-versed in the proposed changes and prepared to present such arguments on behalf of their clients who are – or may be – facing federal sentencing.
Criminal History Calculation
A. Proposed Amendment(s)
The proposed 2023 criminal history amendment makes two (2) important changes to the Chapter Four criminal history rules, both of which would reduce the guideline’s range for certain offenders. First, the amendment eliminates the use of “status points” – which are added if the defendant committed the instant offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status” – in certain circumstances. As amended, the “status points” provision under redesignated U.S.S.G. §4A1.1(e) applies only to offenders with more serious criminal histories under the guidelines. “Status points” will no longer apply to offenders with less serious criminal histories – i.e., six or fewer criminal history points – even if the instant offense was committed while the offender was under a criminal justice sentence.
Second, the proposed amendment creates a new Chapter Four guideline, which provides a decrease of two (2) levels from the offense level for offenders who did not receive any criminal history points under Chapter Four and whose instant offense did not involve certain proscribed criteria. The proposed language of U.S.S.G. §4C1.1 defines “zero-point offenders” as those offenders with no criminal history points, including (1) offenders with no prior convictions; (2) offenders who have prior convictions that are not counted because those convictions were not within the time limits set forth in subsection (d) and (e) of U.S.S.G. §4A1.2; and (3) offenders who have prior convictions that are not used in computing the CHC for reasons other than their “staleness” (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions).
As aforementioned, the Commission also identified circumstances in which zero-point offenders are appropriately excluded from eligibility in light of the seriousness of the instant offense of conviction or the existence of aggravating factors in the instant offense. Thus, in addition to having zero criminal history points, all of the following criteria must be met:
- the defendant did not receive an adjustment under §3A1.4 (Terrorism);
- the defendant did not use violence or credible threats of violence in connection with the offense;
- the offense did not result in death or serious bodily injury;
- the instant offense of conviction is not a sex offense;
- the defendant did not personally cause substantial financial hardship;
- the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
- the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);
- the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
- the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
B. Retroactivity
The Commission’s Rules of Practice and Procedure address retroactive application of amendments and list the procedures that the Commission will follow when considering retroactivity. Under such circumstances, the Commission is required to vote to publish a request for comment on whether to make the amendment available for retroactive application and direct its staff to prepare a retroactivity impact analysis of the amendment. See U.S. SENT’G COMM’N, Rules of Practice and Procedure, Rule 4.1A (2016).
At its April 5, 2023, public meeting, the Commission voted both to publish an issue for comment on whether to make the criminal history amendment available for retroactive application, with a public comment period closing on June 23, 2023, and to instruct staff to prepare this retroactivity impact analysis.
The Commission’s staff conducted a retroactivity analysis and concluded that an estimated 11,49 offenders in BOP custody would have faced a lower sentencing range under the new amendment reducing the potential criminal history points for defendants who committed their offense while under another sentence. The average sentence reduction, based on those potential lower Guidelines ranges, would be 11.7%, and 2,000 inmates would be eligible for release by November 1, 2023, when the amendments are slated to go into effect.
Additionally, the Commission estimates that 7,272 inmates in BOP custody would have a lower Guidelines range if re-sentenced under the amendment providing a 2-level downward departure for having zero criminal history points, with an average reduction of 17.6%. An estimated 1,200 offenders would be eligible for release by November 1, 2023, if the amendment is made retroactive.
Acquitted Conduct
Under previous sentencing guidelines, judges were often able to consider “acquitted conduct” – that is, crimes for which an individual had been acquitted – in determining the appropriate sentence for the crime of conviction. Although acquitted conduct is not expressly addressed in the Guidelines Manual, courts have consistently held that its consideration is permitted by U.S.S.G. §1B1.3 (Relevant Conduct) in conjunction with U.S.S.G. §1B1.4 (Information to be Used in Imposing Sentence) and U.S.S.G. §6A1.3 (Resolution of Disputed Facts). This practice was heavily criticized for violating the principle of double jeopardy as well as undermining the integrity of the criminal justice system.
The proposal would amend U.S.S.G. §1B1.3 to add a new subsection (c), which provides that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction. The new provision defines “acquitted conduct” as conduct underlying a charge of which the defendant has been acquitted by the trier of fact or upon a Motion of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or an analogous Motion under the applicable law of a State, local, or tribal jurisdiction. Furthermore, the amendment would change the Commentary to U.S.S.G. §6A1.3 (Resolution of Disputed Factors) to make conforming revisions addressing the use of acquitted conduct for purposes of determining the guideline range.
The proposed amendments could have a dramatic impact on the judge’s discretion in determining an appropriate sentence as any deviation from the advisory guideline range must be based upon and/or supported by permissible grounds.
First Step Act
The proposed amendment would impact the First Step Act in several important ways, most notably by expanding the list of specified extraordinary and compelling reasons that can warrant sentence reductions. The amendment seeks to expand the list of specified “extraordinary and compelling reasons” through various means, to wit: (a) adding two new subcategories to the “Medical Circumstances of the Defendant” ground for relief; (b) making three modifications to the “Family Circumstances” ground; (c) adding a new ground called “Victim of Abuse”; and (d) adding a new ground called “Unusually Long Sentence,” which permits a judge to consider a non-retroactive change in sentencing law as an extraordinary and compelling reason in specified circumstances. The amendment further clarifies that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.
The new proposed categories that could make an inmate eligible for compassionate release include:
- if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death;
- if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak;
- if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver;
- if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver;
- if the prisoner becomes the victim of sexual assault by a corrections officer; and/or
- if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.
Drug Offenses
The proposed amendment revises subsections (a)(1) and (a)(3) of U.S.S.G. §2D1.1 to make the guideline’s reference to the type of prior offenses that trigger enhanced mandatory minimum penalties consistent with the amended statutory provisions. Specifically, the proposed amendment would revise subsections (a)(1) and (a)(3) to replace the term “similar offense” used in these guideline provisions with the appropriate terms set forth in the relevant statutory provisions, as amended by the First Step Act.
The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history computation, making downward adjustments for offenses that many States decriminalized or legalized. While the proposal does not completely remove marijuana convictions as a criminal history factor, it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”
CONCLUSION
The 2023 proposed amendments to the Federal Sentencing Guidelines represent a significant step forward in making the criminal justice system fairer and more efficient. While Congress may veto one or more of the Guidelines proposals between now and November 1, 2023, that has only happened once before, when Congress voted down a proposed guideline that sought to reduce the crack/cocaine disparity in 2005.
At Friedman Nemecek Long & Grant, L.L.C., our team of experienced attorneys have represented individuals in federal sentencing matters at both the trial court level and on appeal. Our lawyers stay abreast of the constant changes in legislation and/or court cases to ensure that our clients receive the most comprehensive and effective representation available. If you are facing federal prosecution, have been convicted of a federal offense, or simply have questions regarding federal sentencing or the proposed amendments to the Federal Sentencing Guidelines, please call the law firm of Friedman Nemecek Long & Grant, L.L.C., at 888-694-4645 for a free initial consultation.