United States Sentencing Commission Promulgates Amendments for Upcoming 2022-2023 Term

Contents

Primary Item (H2)Sub Item 1 (H3)Sub Item 2 (H4)
Sub Item 3 (H5)
Sub Item 4 (H6)

A now whole sentencing commission begins to consider changes to the federal sentencing guidelines. We will place all of our updates about the 2022-2023 cycle here for easy review.

September 29 Update: Sentencing Commission Puts out Initial List of Priorities

Long-time readers will know that the Sentencing Commission has been deeply broken for a number of years. They did not have enough voting members to make any decisions or issue any updated policies until very recently.

Just last hour, the Sentencing Commission issued their proposed set of “priorities” for issues that they are going to try and address in the next year. I am copying the notice in full for my readers because you need to get the information straight from the source without any spin.

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BAC2210-40

UNITED STATES SENTENCING COMMISSION

Proposed Priorities for Amendment Cycle

AGENCY: United States Sentencing Commission.

ACTION: Notice; Request for public comment.

SUMMARY: As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, and in accordance with Rule 5.2 of its Rules of Practice and Procedure, the United States Sentencing Commission is seeking comment on possible policy priorities for the amendment cycle ending May 1, 2023.

DATES: Public comment should be received by the Commission on or before October 17, 2022.

ADDRESSES: Comments should be sent to the Commission by electronic mail or regular mail. The email address is [email protected]. The regular mail address is United States Sentencing Commission, One Columbus Circle, NE, Suite 2-500, South Lobby, Washington, DC 20002-8002, Attention: Public Affairs – Priorities Comment.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4500, [email protected].

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to the Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

The Commission provides this notice to identify possible policy priorities for the amendment cycle ending May 1, 2023. Other factors, such as legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all identified priorities by May 1, 2023. Accordingly, the Commission may continue work on any or all identified priorities after that date or may decide not to pursue one or more identified priorities. The Commission invites comment on the proposed priorities set forth below. Public comment should be sent to the Commission as indicated in the ADDRESSES section above.

Pursuant to 28 U.S.C. § 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

The proposed priorities for the amendment cycle ending May 1, 2023, are as follows:

(1) Consideration of possible amendments to §1B1.13 (Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)) to (A) implement the First Step Act of 2018 (Pub. L. 115–391); and (B) further describe what should be considered extraordinary and compelling reasons for sentence reductions under 18 U.S.C. § 3582(c)(1)(A).

(2) Consideration of possible amendments to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses), §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), and related provisions in the Guidelines Manual, to implement the First Step Act of 2018 (Pub. L. 115–391).

(3) Consideration of possible amendments to §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) to (A) implement the Bipartisan Safer Communities Act (Pub. L. 117–159); and (B) make any other changes that may be warranted to appropriately address firearms offenses.

(4) Resolution of circuit conflicts as warranted, pursuant to the Commission’s authority under 28 U.S.C. § 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344 (1991), including the circuit conflicts concerning (A) whether the government may withhold a motion pursuant to subsection (b) of §3E1.1(Acceptance of Responsibility) because a defendant moved to suppress evidence; and (B) whether an offense must involve a substance controlled by the Controlled Substances Act (21 U.S.C. § 801 et seq.) to qualify as a “controlled substance offense” under subsection (b) of §4B1.2 (Definitions of Terms Used in Section 4B1.1).

(5) Implementation of any legislation warranting Commission action.

(6) Continuation of its multiyear work on §4B1.2 (Definitions of Terms Used in Section 4B1.1), including possible amendments to (A) provide an alternative approach to the “categorical approach” in determining whether an offense is a “crime of violence” or a “controlled substance offense”; and (B) address various application issues, including the meaning of “robbery” and “extortion,” and the treatment of inchoate offenses and offenses involving an offer to sell a controlled substance.

(7) In light of the Commission’s studies on recidivism, consideration of possible amendments to the Guidelines Manual relating to criminal history to address (A) the impact of “status” points under subsection (d) of §4A1.1 (Criminal History Category); and (B) the treatment of defendants with zero criminal history points.

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

(12) Multiyear study of court-sponsored diversion and alternatives-to-incarceration programs (e.g., Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program), including consideration of possible amendments to the Guidelines Manual that might be appropriate.

(13) Consideration of other miscellaneous issues, including possible amendments to (A) §3D1.2 (Grouping of Closely Related Counts) to address the interaction between §2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) and §3D1.2(d); and (B) §5F1.7 (Shock Incarceration Program (Policy Statement)) to reflect that the Bureau of Prisons no longer operates a shock incarceration program.

AUTHORITY: 28 U.S.C. § 994(a), (o); USSC Rules of Practice and Procedure 5.2.

Carlton W. Reeves,

Chair

Sentencing Commission Receives Public Comments on Proposed Priorities

The United States Sentencing Commission Provided Notice of the proposed priorities for this upcoming term in September 2022. The commission also sought public comment of the proposed priorities.

The Commission Reported that they received thousands of letters from private individuals, government agencies, public defenders, and non-governmental organizations. Some of these letters are over 50 pages long and will take too much space to print in their entirety. These letters include all the proposed changes including compassionate release. We are reading the letters that were submitted and will include excerpts of those letters when time allows.

“In the FSA, Congress broadened the availability of 18 U.S.C. § 3582(c)(1)(A) relief by “remov[ing]the Bureau of Prisons [BOP] from its former role as a gatekeeper over compassionate release petitions,” and allowing individuals to move the court directly for compassionate release. To implement the FSA, the Commission will need to: (1) amend §1B1.13 to comport with Congress’ direction that § 3582(c)(1)(A) motions may be filed by either an incarcerated individual or the BOP; and (2) make clear that an “extraordinary and compelling reason other than, or in combination with,” those specifically enumerated in §1B1.13 may be determined by either the BOP or the court.

“Extraordinary and Compelling Reasons.” The Commission requested comment on “what should be considered extraordinary and compelling reasons for sentence reductions under 18 U.S.C. § 3582(c)(1)(A).” As we discussed in our last two annual letters to the Commission, “extraordinary and compelling” reasons are—by definition—extraordinary and cannot be reduced to an exhaustive list. Indeed, the last few years have taught us that it is impossible to anticipate today the entire universe of circumstances that might warrant compassionate release tomorrow.”

-Federal Defender Sentencing Guidelines Committee

United States Sentencing Commission Presents Final List of Priorities for Next Term

The United States Sentencing Commission has Presented their Final List of Priorities for the Upcoming Term. They are as follows:

BAC2210-40

UNITED STATES SENTENCING COMMISSION

Final Priorities for Amendment Cycle

AGENCY: United States Sentencing Commission.

ACTION: Notice of final priorities.

SUMMARY: In October 2022, the Commission published a notice of proposed policy priorities for the amendment cycle ending May 1, 2023. See 87 FR 60438 (October 5, 2022). After reviewing public comment received pursuant to the notice of proposed priorities, the Commission has identified its policy priorities for the upcoming amendment cycle and hereby gives notice of these policy priorities.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs Specialist, (202) 502-4500, [email protected].

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is an independent agency in the judicial branch of the United States Government. The Commission promulgates sentencing guidelines and policy statements for federal sentencing courts pursuant to 28 U.S.C. § 994(a). The Commission also periodically reviews and revises previously promulgated guidelines pursuant to 28 U.S.C. § 994(o) and submits guideline amendments to Congress not later than the first day of May each year pursuant to 28 U.S.C. § 994(p).

As part of its statutory authority and responsibility to analyze sentencing issues, including operation of the federal sentencing guidelines, the Commission has identified its policy priorities for the amendment cycle ending May 1, 2023. Other factors, such as legislation requiring Commission action, may affect the Commission’s ability to complete work on any or all identified priorities by May 1, 2023. Accordingly, the Commission may continue work on any or all identified priorities after that date or may decide not to pursue one or more identified priorities.

Pursuant to 28 U.S.C. § 994(g), the Commission intends to consider the issue of reducing costs of incarceration and overcapacity of prisons, to the extent it is relevant to any identified priority.

The Commission has identified the following priorities for the amendment cycle ending May 1, 2023:

(2) Consideration of possible amendments to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses)), §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy), §5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases), and related provisions in the Guidelines Manual, to implement the First Step Act of 2018 (Pub. L. 115–391).

(4) Resolution of circuit conflicts as warranted, pursuant to the Commission’s authority under 28 U.S.C. § 991(b)(1)(B) and Braxton v. United States, 500 U.S. 344 (1991), including the circuit conflicts concerning (A) whether the government may withhold a motion pursuant to subsection (b) of §3E1.1 (Acceptance of Responsibility) because a defendant moved to suppress evidence; and (B) whether an offense must involve a substance controlled by the Controlled Substances Act (21 U.S.C. § 801 et seq.) to qualify as a “controlled substance offense” under subsection (b) of §4B1.2 (Definitions of Terms Used in Section 4B1.1).

(5) Implementation of any legislation warranting Commission action.

(7) In light of Commission studies, consideration of possible amendments to the Guidelines Manual relating to criminal history to address (A) the impact of “status” points under subsection (d) of §4A1.1 (Criminal History Category); (B) the treatment of defendants with zero criminal history points; and (C) the impact of simple possession of marihuana offenses.

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Consideration of possible amendments to the Guidelines Manual to address sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and committed by law enforcement or correctional personnel.

(11) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(12) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

(13) Multiyear study of court-sponsored diversion and alternatives-to-incarceration programs (e.g., Pretrial Opportunity Program, Conviction And Sentence Alternatives (CASA) Program, Special Options Services (SOS) Program), including consideration of possible amendments to the Guidelines Manual that might be appropriate.

(14) Consideration of other miscellaneous issues, including possible amendments to (A) §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses) to address offenses involving misrepresentation or marketing of a controlled substance as another substance; (B) §3D1.2 (Grouping of Closely Related Counts) to address the interaction between §2G1.3 (Promoting a Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Transportation of Minors to Engage in a Commercial Sex Act or Prohibited Sexual Conduct; Travel to Engage in Commercial Sex Act or Prohibited Sexual Conduct with a Minor; Sex Trafficking of Children; Use of Interstate Facilities to Transport Information about a Minor) and §3D1.2(d); and (C) §5F1.7 (Shock Incarceration Program (Policy Statement)) to reflect that the Bureau of Prisons no longer operates a shock incarceration program.

AUTHORITY: 28 U.S.C. § 994(a), (o); USSC Rules of Practice and Procedure 5.2.

Carlton W. Reeves,

Chair

About the USSC Amendment Cycle

As a reminder, if you are in the Sixth, Seventh or Eleventh circuits and your grounds for a compassionate release have been foreclosed by recent caselaw, these proposed changes do not give you enough authority to file a compassionate release yet. The proposed amendments will go through an amendment cycle. In the 2017-2018 cycle there was a public meeting in August 2017 to consider the final policy priorities and publish proposed amendments. Then in October and December 2017 there were hearings over specific proposed amendments. Proposed amendments were published in January and more public meetings were held in January and April of 2018 to adopt the proposed guidelines. From there, guidelines were placed in the federal register in May to be reviewed until November 1 when they were deemed effective.

All of this to say: if you are in a place where the courts have a more restrictive view of “extraordinary and compelling reasons” such as the 6^th, 7^th or 11^th circuits, then you may want to give SERIOUS CONSIDERATION to not filing until more favorable guidelines are published, approved and successfully make their way through the federal register.

January 13 Update: United States Sentencing Commission Presents Slate of Amendments For FY 2023 Term

As I mentioned in last week’s newsletter, the Sentencing Commission met on Thursday, January 12, 2023, to vote to publish the proposed Guidelines amendments and issues for comments. The preliminary proposed amendments total nearly 300 pages, which is unfortunately far too large to cover in its entirety here.

Given the voluminous proposals, I have tried to cover what I believe are going to be the most important proposed amendments this cycle. These amendments include changes to the Guidelines covering compassionate release, application of the safety valve, acceptance of responsibility, career offender, criminal history, and acquitted conduct. More information on each amendment is below.

PROPOSED AMENDMENT TO U.S.S.G. 1B1.13 - REDUCTION IN TERM OF IMPRISONMENT UNDER 18 U.S.C. 3582(c)(1)(A)

Synopsis: The proposed amendment would revise the list of “extraordinary and compelling reasons” in 1B1.13 in several ways:

First, the proposed amendment would move the list of extraordinary and compelling reasons from the Commentary to the guideline itself as a new subsection (b). The new subsection (b) would set forth the same three categories of extraordinary and compelling reasons currently found in Application Note 1(A) through (C) (with the revisions described below), add two new categories, and revise the “Other Reasons” category currently found in Application Note 1(D). New subsection (b) would also provide that extraordinary and compelling reasons exist under any of the circumstances, or a combination thereof, described in such categories.

Second, the proposed amendment would add two new subcategories to the “Medical Condition of the Defendant” category at new subsection (b)(1). The first new subcategory is for a defendant suffering from a medical condition that requires long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that is not being provided in a timely or adequate manner. The other new subcategory is for a defendant who presents the following circumstances: (1) the defendant is housed at a correctional facility affected or at risk of being affected by an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate governmental authority; (2) the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or ongoing public health emergency; and (3) such risk cannot be mitigated in a timely or adequate manner.

Third, the proposed amendment would modify the “Family Circumstances” category at new subsection (b)(3) in three ways. First, the proposed amendment would revise the current subcategory relating to the death or incapacitation of the caregiver of a defendant’s minor child by making it also applicable to a defendant’s child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition. Second, the proposed amendment would add a new subcategory to the “Family Circumstances” category for cases where a defendant’s parent is incapacitated and the defendant would be the only available caregiver for the parent. Third, the proposed amendment brackets the possibility of adding a more general subcategory applicable if the defendant presents circumstances similar to those listed in the other subcategories of “Family Circumstances” involving any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member.

Fourth, the proposed amendment brackets the possibility of adding two new categories: (1) Victim of Assault (“The defendant was a victim of sexual assault or physical abuse resulting in serious bodily injury committed by a correctional officer or other employee or contractor of the Bureau of Prisons while in custody.”); and (2) Changes in Law (“The defendant is serving a sentence that is inequitable in light of changes in the law.”).

Fifth, the proposed amendment would revise the provision currently found in Application Note 1(D) of 1B1.13. Three options are provided. All three options would redesignate this category as “Other Circumstances” and expand the scope of the category to apply to all motions filed under 18 U.S.C. 3582(c)(1)(A), regardless of whether such motion is filed by the Director of the BOP or the defendant. Option 1 would provide that this category of extraordinary and compelling reasons applies in cases where a defendant presents any other circumstance or a combination of circumstances similar in nature and consequence to any of the circumstances described in new subsection (b)(1) through [(3)][(4)][(5)] of 1B1.13. Option 2 would provide that that this category applies if, as a result of changes in the defendant’s circumstances [or intervening events that occurred after the defendant’s sentence was imposed], it would be inequitable to continue the defendant’s imprisonment or require the defendant to serve the full length of the sentence. Option 3 would track the language in current Application Note 1(D) of 1B1.13 and apply if the defendant presents an extraordinary and compelling reason other than, or in combination with, the circumstances described in paragraphs (1) through [(3)][(4)][(5)].

Finally, the proposed amendment would move current Application Note 3 (stating that, pursuant to 28 U.S.C. 994(t), rehabilitation of a defendant is not, by itself, an extraordinary and compelling reason for purposes of 1B1.13) into the guideline as a new subsection (c). In addition, as conforming changes, the proposed amendment would delete application notes 2 (concerning the foreseeability of extraordinary and compelling reasons), 4 (concerning a motion by the Director of the Bureau of Prisons), and 5 (concerning application of subdivision 3), and make a minor technical change to the Background commentary.

PROPOSED AMENDMENT - SAFETY VALVE

Section 3553(f) of title 18, United States Code, allows a court to impose a sentence without regard to any statutory minimum penalty if it finds that a defendant meets certain criteria. As originally enacted, the safety valve applied only to offenses under 21 U.S.C. 841, 844, 846, 960, and 963 and to defendants who, among other things, had not more than one criminal history point, as determined under the guidelines. When it first enacted the safety valve, Congress directed the Commission to promulgate or amend guidelines and policy statements to “carry out the purposes of [section 3553(f)].”

Following enactment of the First Step Act, circuit courts have disagreed about how the word “and” connecting subsections (A) through (C) in section 3553(f)(1) operates. The Fifth, Sixth, Seventh, and Eighth Circuits have held that section 3553(f)(1) should be read to exclude a defendant who meets any single disqualifying condition. In contrast, the Ninth and Eleventh Circuits have held that the “and” is conjunctive and a defendant must have (A) more than four criminal history points, (B) a prior three-point offense, and (C) a prior two-point violent offense to be disqualified for safety valve relief.

The proposed amendment would amend 5C1.2 and its commentary to reflect the broader class of defendants who are eligible for safety valve relief (as well as 4A1.1, 4A1.2, 4A.13, 2D1.1, and 2D1.11). Part A provides two options:

Option 1 would amend 5C1.2(a)(1) to closely track the language in 18 U.S.C. 3553(f)(1), but would not resolve the circuit conflict for purposes of 2D1.1(b)(18) and 2D1.11(b)(6).

Option 2 would amend 2D1.1 and 2D1.11, but would set forth the criteria disjunctively consistent with the approach of the Fifth, Sixth, Seventh, and Eighth Circuits, rendering a defendant ineligible for the 2-level reduction if the defendant presents any of the disqualifying conditions.

PROPOSED AMENDMENT: CIRCUIT CONFLICTS (Acceptance of Responsibility and Definitions Used in 4B1.1)

The proposed amendment addresses circuit conflicts involving 3E1.1 and 4B1.2. Part A of the proposed amendment would amend 3E1.1 and its commentary to address circuit conflicts concerning (A) whether the government may withhold a motion pursuant to 3E1.1(b) because a defendant moved to suppress evidence; and (B) whether an offense must involve a substance controlled by the Controlled Substance Act to qualify as a “controlled substance offense” under 4B1.2(b).

Part A of the proposed amendment would amend 3E1.1 by setting forth a definition of the term “preparing for trial” that provides more clarity on what actions typically constitute preparing for trial for 3E1.1(b) purposes.

Part B would amend 4B1.2 by adding a definition of the term “controlled substance” to address a circuit conflict concerning the definition of “controlled substance offense” in 4B1.2(b) only covers offenses involving substances controlled by federal law.

Option 1 would set forth a definition of “controlled substance” that adopts the approach of the Second and Ninth Circuits. It would limit the definition of the term to substances that are specifically included in the CSA.

Option 2 would set forth a definition of “controlled substance” that adopts the approach of the Fourth, Seventh, Eighth, and Tenth Circuits. It would provide that the term “controlled substance” refers to substances either included in the CSA or otherwise controlled under applicable state law

PROPOSED AMENDMENT: CAREER OFFENDER

This proposed amendment would include (A) providing an alternative approach to the categorical approach in determining whether an offense is a crime of violence or controlled substance offense; and (B) address various application issues including the meaning of “robbery” and “extortion,” and the treatment of inchoate offenses and offenses involving an offer to sell controlled substances.

Part A of the proposed amendment would amend 4B1.2 to address recurrent criticism of the categorical approach and modified categorical approach, which courts have applied in the context of 4B1.1 (Career Offender). It eliminates the categorical approach from the guidelines by defining “crime of violence” and “controlled substance offense” based upon a list of guidelines, rather than offenses or elements of an offense. Part A would also make conforming changes to the guidelines that use the terms “crime of violence” and “controlled substance offense” and define these terms by making specific reference to 4B1.2.

Part B of the proposed amendment would address the concern that certain robbery offenses, such as Hobbs Act robbery, no longer constitute a “crime of violence” under 4B1.2, as amended in 2016. It would amend 4B1.2 to add a definition of “robbery” that mirrors the Hobbs Act robbery definition at 18 U.S.C. 1951(b)(1). Part B of the proposed amendment also brackets a provision defining the phrase “actual or threatened force,” for purposes of the new “robbery” definition, as “force sufficient to overcome a victim’s resistance,” informed by the Supreme Court’s holding in Stokeling v. United States, 139 S. Ct. 544, 550 (2019).

Part C of the proposed amendment would amend 4B1.2 to address two circuit conflicts regarding the commentary provision stating that the terms “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring to commit, and attempting to commit a “crime of violence” and a “controlled substance offense.” Two options are presented.

Option 1 would address the conspiracy issue in a comprehensive manner that would be applicable to all other inchoate offenses and offenses arising from accomplice liability by adding: “To determine whether any offense described above qualifies as a ‘crime of violence’ or ‘controlled substance offense,’ the court shall only determine whether the underlying substantive offense is a ‘crime of violence’ or a ‘controlled substance offense,’ and shall not consider the elements of the inchoate offense or offense arising from accomplice liability.”

Option 2 would take a narrower approach, addressing only conspiracy offenses without addressing whether the court must perform a two-step analysis. Option 2 would instead add a provision to new subsection (c) that brackets two alternatives addressing conspiracy to commit a “crime of violence” or a “controlled substance offense.” The first bracketed alternative provides that an offense of conspiring to commit a “crime of violence” or a “controlled substance offense” qualifies as a “crime of violence” or a “controlled substance offense,” regardless of whether an overt act must be proved as an element of the conspiracy offense. The second bracketed alternative provides that an offense of conspiring to commit a “crime of violence” or a “controlled substance offense” qualifies as a “crime of violence” or a “controlled substance offense,” only if an overt act must be proved as an element of the conspiracy offense.

Part D of the proposed amendment would amend the definition of “controlled substance offense” in 4B1.2(b) to include offenses involving an offer to sell a controlled substance and offenses.

PROPOSED AMENDMENT: CRIMINAL HISTORY

Part A of the proposed amendments addresses the impact of “status” points under the guidelines. Three options are provided.

Option 1 would add a downward departure provision in Application Note 4 of the Commentary to 4A1.1 for cases in which “status” points are applied.

Option 2 would reduce the impact of “status” points overall, by decreasing the criminal history points added under 4A1.1(d) from two points to one point. It would also add a departure provision in Application Note 4 of the Commentary to 4A1.1 that could result in either an upward departure or a downward departure, depending on the circumstances.

Option 3 would eliminate the “status” points provided in 4A1.1(d). It would also make conforming changes to 2P1.1 (Escape, Instigating or Assisting Escape) and 4A1.2 to reflect the removal of “status” points from the Guidelines Manual. In addition, Option 3 would amend the Commentary to 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide an example of an instance in which an upward departure from the defendant’s criminal history may be warranted.

Part B of the proposed amendment sets forth a new Chapter Four guideline, at 4C1.1 (Adjustment for Certain Zero-Point Offenders). New 4C1.1 would provide a decrease of [1 level][2 levels] from the offense level determined under Chapters Two and Three for zero point offenders who meet certain criteria. It provides two options for establishing the criteria.

Option 1 would make the adjustment applicable to zero-point offenders with no prior convictions. It would provide a [1][2]-level decrease if the defendant meets all of the following criteria: (1) the defendant did not receive any criminal history points from Chapter Four, Part A, and had no prior convictions or other comparable judicial dispositions of any kind; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury; (4) the defendant’s acts or omissions did not result in substantial financial hardship to [one or more victims][five or more victims][25 or more victims]; (5) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under 3B1.1 (Aggravating Role), and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; and (6) [the defendant is not determined to be a repeat and dangerous sex offender against minors under 4B1.5 (Repeat and Dangerous Sex Offender Against Minors)][the instant offense of conviction is not a covered sex crime]. Under Option 1, approximately 10,500 offenders sentenced in fiscal year 2021 would have been eligible under 4C1.1 depending on the exclusionary criteria.

Option 2 would make the adjustment applicable to all offenders who had no countable convictions (i.e., offenders who received zero criminal history points based upon the criminal history rules in Chapter Four). It would provide a [1 level][2 levels] decrease if the defendant meets all of the following criteria: (1) the defendant did not receive any criminal history points from Chapter Four, Part A; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or 4 serious bodily injury; (4) the defendant’s acts or omissions did not result in substantial financial hardship to [one or more victims][five or more victims][25 or more victims]; (5) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under 3B1.1 (Aggravating Role), and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; and (6) [the defendant is not determined to be a repeat and dangerous sex offender against minors under 4B1.5 (Repeat and Dangerous Sex Offender Against Minors)][the instant offense of conviction is not a covered sex crime]. Option 2 also provides for an upward departure that would be applicable if the adjustment under new 4C1.1 substantially underrepresents the seriousness of the defendant’s criminal history. Under Option 2, approximately 13,500 offenders sentenced in fiscal year 2021 would have been eligible under 4C1.1 depending on the exclusionary criteria.

Part C of the proposed amendment would amend the Commentary to 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) 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. Specifically, Part C of the proposed amendment would provide that a downward departure may be warranted if the defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person

PROPOSED AMENDMENT: ACQUITTED CONDUCT - 1B1.3 (RELEVANT CONDUCT)

Section 1B1.3 sets forth the principles and limits of sentencing accountability for purposes of determining a defendant’s guideline range, a concept referred to as “relevant conduct.” The proposed amendment would amend 1B1.3 to add a new subsection (c) providing 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 guilty 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 would define “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. The proposed amendment would also amend the Commentary to 6A1.3 (Resolution of Disputed Factors (Policy Statement)) to make conforming revisions addressing the use of acquitted conduct for purposes of determining the guideline range.

April 3 Update: United States Sentencing Commission to Vote on Proposed Amendments Wednesday

As you know, the United States Sentencing Commission has discussed amending the Sentencing Guidelines regarding several issues. The proposed sentencing guideline changes will be listed in a separate email due to space concerns.

Over the past few weeks the sentencing commission has taken written and oral testimony about the proposed amendments. The commission has set a date to vote on the proposed amendments of April 5. The meeting will be live streamed, and I will watch the meeting and report back to you all.

What Will Happen At the Meeting?

Much like the December meeting, this meeting will most likely consist of parliamentary procedure and motions to vote to approve the guidelines as well as minutes from the last meeting. In fact, the sentencing commission website indicates the following:

The agenda follows:

-Vote to Adopt January 2023 Meeting Minutes
-Report from the Chair
-Vote to Promulgate Proposed Amendments
-Adjourn

I believe that if there was going to be public debate by the commission heads then it would have already happened. If the amendments were to be amended further as a result of the public comment, then I believe that we would have seen it. Further, I believe that the amendments will be approved by the commission as proposed.

Several of the proposed amendments have different options as to how the commissioners could amend them. I believe that the commissioners will present what options they decided to go forward with and explain why at the hearing.

What Happens After the Meeting?

Assuming the amendments will be passed by the commission, they will go into the Federal Register, which is a place where federal regulations go for purposes of public record. From there, congress has 180 days to “affirmatively disapprove (which means vote the proposed amendments down),” something that rarely happens. After 180 days in the Federal Register the amendments will be made effective, and motions can be filed.

The final amendments must be delivered to congress no later than May 1st. They can, however, be delivered any time after voting and before May 1. We will notify you when the amendments are delivered to congress so that you can prepare yourselves and your potential motions.

What Can I Do to Get Ready?

The most important things to do to prepare for the upcoming amendments is to reach out to the Bureau of Prisons and ask for release and start getting your documents together.

The text of the FIRST STEP Act requires that individuals who are seeking release write a letter to their warden asking for a reduction in sentence. This still applies, even after the proposed amendments are approved. I believe that you will be able to write a letter to the warden as soon as the proposed amendments get submitted in the federal register. A compassionate release that is based on the proposed amendments will still be either denied by the BOP or no action will be taken on your letter. But after submitting your letter and waiting at least 30 days you will be able to file with the courts.

In addition, I recommend that you take time to get your documents together and be ready for filing. This means your team sheets, letters of support and medical records all can be gotten together now. Anything and Everything that will be needed to file your motion and let the court know what you want them to know can be retrieved and assembled now. This way when it is time to file or retain counsel so that they can assist with filing, there will be as little impediments to filing as possible.

April 6 Update: United States Sentencing Commission Votes on and Promulgates New Amendments

All, the Sentencing Commission has voted on the new amendments to the guidelines. I watched the hearing and it was unlike any I had seen before.

Normally these hearings and votes are mundane and straight forward. And most of this was the same: the commission passed all the amendments that came before them for a vote. The relevant conduct amendment was tabled for now. The commission approved the minutes from the last meeting and adjourned.

What was different in this session was the divided vote on the amendments to USSG 1B1.13, the guidelines that discuss extraordinary and compelling reasons for compassionate release. This amendment passed by a vote of 4 ayes to 3 nays, the only time that I’ve seen such a thing. The amendments only needed 4 votes out of 7 to pass however, so they were approved.

The amendments are required to be delivered to congress on or before May 1, 2023. It was declared the amendments would be effective on November 1, 2023 unless they are voted down by congress:

Part IV – Guideline Amendment Process Rule 4.1 – Promulgation of Amendments The Commission may promulgate and submit to Congress amendments to the guidelines after the beginning of a regular session of Congress and not later than May 1 of that year. Amendments shall be accompanied by an explanation or statement of reasons for the amendments. Unless otherwise specified, or unless Congress legislates to the contrary, amendments submitted for review shall take effect on the first day of November of the year in which submitted.

28 U.S.C. § 994(p).

My rapid reaction is that because the amendments will most likely not be legislated to the contrary. This is because one political party is “in control” of the House of Representatives but the other major political party has a majority in the Senate. So I believe that these amendments will be effective on November 1.

Press Release from United States Sentencing Commission

New Policies Increase First Steps Toward Second Chances, Take Targeted Action on Gun Trafficking and Fentanyl, and Expand Alternatives to Incarceration

WASHINGTON, D.C. ― Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted today to promulgate amendments to the federal sentencing guidelines. “The Sentencing Commission is back in business,” said Chair Carlton W. Reeves. “Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” Watch public meeting.

During the pandemic, federal judges saved lives using their authority in 18 U.S.C. § 3582(c)(1)(A) to reduce sentences for incarcerated people facing “extraordinary and compelling” circumstances like certain risks posed by COVID-19. Responding to the First Step Act’s directive to increase the use and transparency of this tool, the Commission updated its guidelines to reflect lessons learned since the pandemic, ensure judges can continue to take first steps toward second chances for those who deserve them, and reunite families through appropriate reentry. “Judges are in the best position to decide if someone deserves to have the length of their sentence revisited,” said Chair Reeves. “This policy trusts courts to continue doing what is right.”

Since the Commission last had a quorum, communities across the country have struggled with the ills of gun trafficking and fentanyl. Congress directed the Commission to act on gun trafficking through the Bipartisan Safer Communities Act of 2022, while the Drug Enforcement Administration asked the Commission to evaluate possible action on fentanyl. In response, the Commission voted to take targeted action on both issues. “The problems of gun trafficking and drug overdoses demand a comprehensive response,” said Vice Chair Claire Murray. “I am proud to say the Commission is doing its part by ensuring we have proportional sentences for serious offenses.”

The Commission is also revising guidance to courts regarding people facing their first federal conviction. Relying on data and extensive analysis about recidivism, the Commission is acting to maximize public safety and encourage consideration of alternatives to incarceration. “Our new policies revise the sentencing guidelines based on empirical research and experience,” said Vice Chair Laura Mate. “This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Among the many other policies issued by the Commission are those that seek to address ghost guns, sexual abuse of incarcerated people by correctional employees, clarify acceptance of responsibility points for defendants, and implement criminal justice legislation passed by Congress. “The policies issued today reflect the wide spectrum of views we received through public hearing testimony and tens of thousands of letters,” said Chair Reeves. “The policies issued today prove, beyond a doubt, that when you speak to the Commission, you will be heard.”

While the newly reconstituted Commission concludes its first policymaking cycle, there is more work to do. In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023. Visit the Commission’s website for more information about the amendment process and the changes approved today.

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Proposed Compassionate Release Amendment

1B1.13. Reduction in Term of Imprisonment Under 18 U.S.C. § 3582(c)(1)(A) (Policy Statement)

(a) In General - Upon motion of the Director of the Bureau of Prisons or the defendant under 18 U.S.C. § 3582(c)(1)(A), the court may reduce a term of imprisonment (and may impose a term of supervised release with or without conditions that does not exceed the unserved portion of the original term of imprisonment) if, after considering the factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable, the court determines that—

(1) (A) extraordinary and compelling reasons warrant the reduction; or

(B) the defendant (i) is at least 70 years old; and (ii) has served at least 30 years in prison pursuant to a sentence imposed under 18 U.S.C. § 3559(c) for the offense or offenses for which the defendant is imprisoned;

(2) the defendant is not a danger to the safety of any other person or to the community, as provided in 18 U.S.C. § 3142(g); and

(3) the reduction is consistent with this policy statement.

(b) EXTRAORDINARY AND COMPELLING REASONS.—Extraordinary and compelling reasons

exist under any of the following circumstances or a combination thereof:

(1) MEDICAL CIRCUMSTANCES OF THE DEFENDANT.—

(A) The defendant is suffering from a terminal illness (i.e., a serious and advanced illness with an end of life trajectory). A specific prognosis of life expectancy (i.e., a probability of death within a specific time period) is not required. Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced dementia.

(B) The defendant is—

(i) suffering from a serious physical or medical condition,

(ii) suffering from a serious functional or cognitive impairment, or

(iii) experiencing deteriorating physical or mental health because of the aging process,

that substantially diminishes the ability of the defendant to provide self- care within the environment of a correctional facility and from which he or she is not expected to recover.

(C) The defendant is suffering from a medical condition that requires long- term or specialized medical care that is not being provided and without which the defendant is at risk of serious deterioration in health or death.

(D) The defendant presents the following circumstances—

(i) the defendant is housed at a correctional facility affected or at imminent risk of being affected by (I) an ongoing outbreak of infectious disease, or (II) an ongoing public health emergency declared by the appropriate federal, state, or local authority;

(ii) due to personal health risk factors and custodial status, the defendant is at increased risk of suffering severe medical complications or death as a result of exposure to the ongoing outbreak of infectious disease or the ongoing public health emergency described in clause (i); and

(iii) such risk cannot be adequately mitigated in a timely manner.

(2) AGE OF THE DEFENDANT.—The defendant (A) is at least 65 years old; (B) is experiencing a serious deterioration in physical or mental health because of the aging process; and (C) has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less.

(3) FAMILY CIRCUMSTANCES OF THE DEFENDANT.—

(A) The death or incapacitation of the caregiver of the defendant’s minor child or the defendant’s child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition.

(B) The incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver for the spouse or registered partner.

(C) The incapacitation of the defendant’s parent when the defendant would be the only available caregiver for the parent.

(D) The defendant establishes that circumstances similar to those listed in paragraphs (3)(A) through (3)(C) exist involving any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member, when the defendant would be the only available caregiver for such family member or individual. For purposes of this provision, “immediate family member” refers to any of the individuals listed in paragraphs (3)(A) through (3)(C) as well as a grandchild, grandparent, or sibling of the defendant.

(4) VICTIM OF ABUSE.—The defendant, while in custody serving the term of imprisonment sought to be reduced, was a victim of:

(A) sexual abuse involving a “sexual act,” as defined in 18 U.S.C. § 2246(2) (including the conduct described in 18 U.S.C. § 2246(2)(D) regardless of the age of the victim); or

(B) physical abuse resulting in “serious bodily injury,” as defined in the Commentary to §1B1.1 (Application Instructions);

that was committed by, or at the direction of, a correctional officer, an employee or contractor of the Bureau of Prisons, or any other individual who had custody or control over the defendant.

For purposes of this provision, the misconduct must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding, unless such proceedings are unduly delayed or the defendant is in imminent danger.

(5) OTHER REASONS.—The defendant presents any other circumstance or combination of circumstances that, when considered by themselves or together with any of the reasons described in paragraphs (1) through (4), are similar in gravity to those described in paragraphs (1) through (4).

(6) UNUSUALLY LONG SENTENCES.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be consideredin determining whether the defendant presents an extraordinary and compelling reason, 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, and after full consideration of the defendant’s individualized circumstances.

(c) LIMITATION ON CHANGES IN LAW.—Except as provided in subsection (b)(6), a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) shall not be considered for purposes of determining whether an extraordinary and compelling reason exists under this policy statement. However, if a defendant otherwise establishes that extraordinary and compelling reasons warrant a sentence reduction under this policy statement, a change in the law (including an amendment to the Guidelines Manual that has not been made retroactive) may be considered for purposes of determining the extent of any such reduction.

(d) {REHABILITATION OF THE DEFENDANT.—Pursuant to 28 U.S.C. §994(t), rehabilitation of the defendant is not, by itself, an extraordinary and compelling reason for purposes of this policy statement. However, rehabilitation of the defendant while serving the sentence may be considered in combination with other circumstances in determining whether and to what extent a reduction in the defendant’s term of imprisonment is warranted.

(e) FORESEEABILITY OF EXTRAORDINARY AND COMPELLING REASONS.—For purposes of this policy statement, an extraordinary and compelling reason need not have been unforeseen at the time of sentencing in order to warrant a reduction in the term of imprisonment. Therefore, the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.

Interaction with Temporary Release from Custody Under 18 U.S.C. §3622

(“Furlough”).—A reduction of a defendant’s term of imprisonment under this policy statement is not appropriate when releasing the defendant under 18 U.S.C. § 3622 for a limited time

adequately addresses the defendant’s circumstances.

Notification of Victims.—Before granting a motion pursuant to 18 U.S.C. § 3582(c)(1)(A), the

Commission encourages the court to make its best effort to ensure that any victim of the offense is reasonably, accurately, and timely notified, and provided, to the extent practicable, with an opportunity to be reasonably heard, unless any such victim previously requested not to be notified.

Background: The Commission is required by 28 U.S.C. § 994(a)(2) to develop general policy statements regarding application of the guidelines or other aspects of sentencing that in the view of the Commission would further the purposes of sentencing (18 U.S.C. § 3553(a)(2)), including, among other things, the appropriate use of the sentence modification provisions set forth in 18 U.S.C. § 3582(c). In doing so, the Commission is authorizedrequired by 28 U.S.C. § 994(t) to “describe what should be considered extraordinary and compelling reasons for sentence reduction, including the criteria to be applied and a list of specific examples.” This policy statement implements 28 U.S.C. § 994(a)(2) and (t).

Promulgated Sentencing Guidelines Amendment: Recidivist Penalties for Drug Offenders

2D1.1. Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy

(a)

Base Offense Level (Apply the greatest):

(1) 43, if—

(A) the defendant is convicted under 21 U.S.C. 841(b)(1)(A), or (b)(1)(B), or 21 U.S.C. 960(b)(1), or (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a serious drug felony or serious violent felony; or

(B) the defendant is convicted under 21 U.S.C. 841(b)(1)(C) or 21 U.S.C. 960(b)(3) and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense afterone or more prior convictions for a felony drug offense; or

(2) 38, if the defendant is convicted under 21 U.S.C. 841(b)(1)(A), (b)(1)(B), or (b)(1)(C), or 21 U.S.C. 960(b)(1), (b)(2), or (b)(3), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or

(3) 30, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance and that the defendant committed the offense after one or more prior convictions for a felony drug offense; or

(4) 26, if the defendant is convicted under 21 U.S.C. 841(b)(1)(E) or 21 U.S.C. 960(b)(5), and the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance; or

(5) the offense level specified in the Drug Quantity Table set forth in subsection (c), except that if (A) the defendant receives an adjustment under 3B1.2 (Mitigating Role); and (B) the base offense level under subsection (c) is (i) level 32, decrease by 2 levels; (ii) level 34 or level 36, decrease by 3 levels; or (iii) level 38, decrease by 4 levels. If the resulting offense level is greater than level 32 and the defendant receives the 4-level (“minimal participant”) reduction in 3B1.2(a), decrease to level 32.

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Commentary

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Application Notes:

For purposes of the guidelines, a “plant” is an organism having leaves and a readily observable root formation (e.g., a marihuana cutting having roots, a rootball, or root hairs is a marihuana plant).

For purposes of subsection (a), “serious drug felony,” “serious violent felony,” and “felony drug offense” have the meaning given those terms in 21 U.S.C. 802.

“Mixture or Substance”. —“Mixture or substance” as used in this guideline has the same meaning as in 21 U.S.C. 841, except as expressly provided. Mixture or substance does not include materials that must be separated from the controlled substance before the controlled substance can be used. Examples of such materials include the fiberglass in a cocaine/fiberglass bonded suitcase, beeswax in a cocaine/beeswax statue, and waste water from an illicit laboratory used to manufacture a controlled substance. If such material cannot readily be separated from the mixture or substance that appropriately is counted in the Drug Quantity Table, the court may use any reasonable method to approximate the weight of the mixture or substance to be counted.An upward departure nonetheless may be warranted when the mixture or substance counted in the Drug Quantity Table is combined with other, non-countable material in an unusually sophisticated manner in order to avoid detection.Similarly, in the case of marihuana having a moisture content that renders the marihuana unsuitable for consumption without drying (this might occur, for example, with a bale of rain- soaked marihuana or freshly harvested marihuana that had not been dried), an approximation of the weight of the marihuana without such excess moisture content is to be used.

UNITED STATES SENTENCING COMMISSION PROMULGATES CRIMINAL HISTORY AMENDMENTS

Reason for Amendment: This amendment is the result of several Commission studies regarding the nature of the criminal history of federal offenders, including analyses of the number and types of prior convictions included as criminal history and the ability of the criminal history rules to predict an offender’s likelihood of rearrest. While these studies continue to recognize the close association between an offender’s criminal history calculation under the guidelines and the likelihood of future recidivism, the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), to reduce recommended guideline ranges for offenders with zero criminal history points under the guidelines (“zero-point offenders”), and to recognize the changing legal landscape as it pertains to simple possession of marihuana offenses. These targeted amendments balance the Commission’s mission of implementing data-driven sentencing policies with its duty to craft penalties that reflect the statutory purposes of sentencing.

Part A – Status Points

Part A of the amendment addresses “status points” for offenders, namely the additional criminal history points given to offenders for the fact of having committed the instant offense while under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. The amendment redesignates current subsection (d) of §4A1.1, which addresses “status points,” as subsection (e) and redesignates current subsection (e), which addresses multiple crimes of violence treated as a single sentence, as subsection (d). This redesignation is made for ease of application.

Under the previous “status points” provision, two criminal history points were added under §4A1.1(d) if the defendant committed the instant offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” The amendment limits the overall criminal history impact of “status points” in two ways. First, as revised, the “status points” provision under redesignated

subsection (e) applies only to offenders with more serious criminal histories under the guidelines by requiring that an offender have seven or more criminal history points under subsections (a) through (d) in addition to having been under a criminal justice sentence at the time of the instant offense. Offenders with six or fewer criminal history points under subsections (a) through (d) will no longer receive “status points.” Second, the amendment also reduces from two points to one point the “status points” assessed for offenders to whom the revised provision applies. Part A of the amendment also makes conforming changes to the Commentary to §4A1.1, §2P1.1 (Escape, Instigating or Assisting Escape), and §4A1.2 (Definitions and Instructions for Computing Criminal History).

As part of its study of criminal history, the Commission found that “status points” are relatively common in cases with at least one criminal history point, having been applied in 37.5 percent of cases with criminal history points over the last five fiscal years. Of the offenders who received “status points,” 61.5 percent had a higher Criminal History Category as a result of the addition of the “status points.” The Commission also recently published a series of research reports regarding the recidivism rates of federal offenders. See, e.g., U.S. SENT’G COMM’N, RECIDIVISM OF FEDERAL OFFENDERS RELEASED IN 2010 (2021), available at https://www.ussc.gov/research/research-reports/recidivism-federal- offenders-released-2010. These reports again concluded that an offender’s criminal history calculation under the guidelines is strongly associated with the likelihood of future recidivism by the defendant. In a related publication, the Commission also found, however, that status points add little to the overall predictive value associated with the criminal history score. See U.S. SENT’G COMM’N, REVISITING STATUS POINTS (2022), available athttps://www.ussc.gov/research/research-reports/revisiting-status-points.

The Commission’s action to limit the impact of “status points” builds upon its tradition of data-driven evolution of the guidelines. As described in the Introduction to Chapter Four, the original Commission envisioned status points as “consistent with the extant empirical research assessing correlates of recidivism and patterns of career criminal behavior” and therefore envisioned “status points” as being reflective of, among other sentencing goals, the increased likelihood of future recidivism. See USSG Ch.4, Pt.A, intro. comment. The original Commission also explained, however, that it would “review additional data insofar as they become available in the future.” The Commission’s recent research suggests that “status points” improve the predictive value of the criminal history score less than the original Commission may have expected, suggesting that the treatment of “status points” under Chapter Four should be refined.

Accordingly, the Commission determined that it was appropriate to address several concerns regarding the scope and impact of status points. In taking these steps, the Commission observed that the operation of the Guidelines Manual separately accounts for consecutive punishment imposed upon revocations of supervised release, a likely occurrence if an offender was under a criminal justice sentence during the commission of another offense. The Commission further recognized that it is also possible that an offender’s criminal history score would be independently increased as the result of additional time imposed as the result of a revocation of probation or supervised release for the offense that also results in the addition of status points.

At the same time, by retaining “status points” for those offenders in higher criminal history categories, the Commission continues to recognize that “status points,” like the other criminal history provisions in Chapter Four, reflect and serve multiple purposes of sentencing, including the offender’s perceived lack of respect for the law, as reflected both in the offender’s overall criminal history and the fact that the offender has reoffended while under a criminal justice sentence ordered by a court. See 18 U.S.C. § 3553(a)(2)(A)–(C).

The Commission concluded that accounting for status on a more limited basis continues to serve the broader purposes of sentencing while also addressing other concerns raised regarding the impact of status points.

Part B – Zero-Point Offenders

Part B of the amendment includes three subparts making changes pertaining to offenders who did not receive any criminal history points from Chapter Four, Part A. Subpart 1 provides for an adjustment for certain offenders with zero criminal history points. Subpart 2 revises §5C1.1 (Imposition of a Term of Imprisonment) to implement the congressional directive at 28 U.S.C. § 994(j). Finally, Subpart 3 makes other conforming changes.

Subpart 1 – Adjustment for Certain Zero-Point Offenders

Subpart 1 of Part B of the amendment creates a new Chapter Four guideline at §4C1.1 (Adjustment for Certain Zero-Point Offenders). New §4C1.1 provides a decrease of two levels from the offense level determined under Chapters Two and Three for offenders who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors. In establishing new §4C1.1, the Commission was informed by its studies of recidivism among federal offenders, as well as other extensive data analyses of offenders with no criminal history points, and public comment. The Sentencing Table in Chapter Five, Part A is divided into six criminal history categories, from I (lowest) to VI (highest). Criminal History Category I includes offenders with zero criminal history points and those with one criminal history point. Recidivism data analyzed by the Commission shows, however, that offenders with zero criminal history points have considerably lower recidivism rates than other offenders, including offenders with one criminal history point. See U.S. SENT’G COMM’N, RECIDIVISM OF FEDERAL OFFENDERS RELEASED IN 2010 (2021), available at https://www.ussc.gov/research/research- reports/recidivism-federal-offenders-released-2010. Among other findings, the report concluded that “zero-point offenders” were less likely to be rearrested than “one point” offenders (26.8% compared to 42.3%), the largest variation of any comparison of offenders within the same Criminal History Category.

In promulgating this change, the Commission also considered the rates of departures and variances in cases involving offenders with no criminal history points. The Commission has long viewed the rates and extents of departures and variances from the applicable guideline ranges as a feedback mechanism from the courts that a particular area of the guidelines may warrant further review and possible amendment. In fiscal year 2021, 39.2 percent of offenders with zero criminal history points received a sentence within the guidelines range; by comparison, 47.4 percent of offenders with one criminal history point were sentenced within the guideline range. The Commission determined that the departure and variance rates for zero-point offenders, coupled with its recidivism data, warranted action…

***end of part 1, part 2 coming out Sunday***

Federal Criminal Newsletter Weekend of May 6 Part 2

Hi Everyone,

Thank you for subscribing to my newsletter. Please continue to encourage others to subscribe by adding [email protected] to your contact list. If you are interested in hiring me to work on something for you, please add [email protected] to your email list. Your friends and family can request an appointment to speak with me about your case by visiting the appointment link at the top of my website, www.gordondefense.com. The email address [email protected] is used exclusively for the newsletter.

We continue our coverage of the pending sentencing commission amendments. This is part 2 of the newsletter that we started Saturday. Part 3 will come out Sunday.

The amendment applies to 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 §4A1.2 (Definitions and Instructions for Computing Criminal History); and (3) offenders who have prior convictions that are not used in computing the criminal history category for reasons other than their “staleness” (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions). In adopting this definition of “zero-point offenders,” the Commission opted to hew to the long-standing and carefully crafted criminal history rules set forth in Chapter Four, regarding which prior convictions count for criminal history purposes and which do not. The Commission also observed that attempts to exclude offenders with certain prior convictions could lead to increased complexity and litigation and require the additional practical step of investigating prior unscorable offenses for which records may not be readily available.

While determining that a reduction is appropriate for some offenders with zero criminal history points, 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 (e.g., where the offender used violence or credible threats of violence in connection with the offense or where the instant offense of conviction was a “sex offense”). The exclusionary criteria identified by the Commission were again informed by extensive data analyses and public comment. The Commission was also informed by existing legislation, including the congressionally established criteria for the statutory safety valve at 18 U.S.C. § 3553(f) and the recent firearms legislation set forth in the Bipartisan Safer Communities Act.

Subpart 2 – Implementation of 28 U.S.C. § 994(j)

Subpart 2 of Part B of the amendment revises the Commentary to §5C1.1 (Imposition of a Term of Imprisonment) that addresses “nonviolent first offenders.” New Application
Note 10(A) provides that if the defendant received an adjustment under new §4C1.1 and the defendant’s applicable guideline range is in Zone A or B of the Sentencing Table, a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3), is generally appropriate. New Application Note 10(B) adds a corresponding departure provision providing that a departure, including a departure to a sentence other than a sentence of imprisonment, may be appropriate if the offender received an adjustment under new §4C1.1 and the applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.

The changes to the Commentary to §5C1.1 respond to Congress’s directive to the Commission at 28 U.S.C. § 994(j), directing the Commission to ensure that the guidelines reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense. The Commission determined that the revised commentary serves Congress’s intent in promulgating section 994(j) while providing appropriate limitations and guidance through reliance on the criteria set forth in new §4C1.1 and the specific statutory language set forth in section 994(j).

Subpart 3 – Additional Changes

Subpart 3 of Part B of the amendment makes a corresponding change to
subsection (b)(2)(A) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide that a departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited, “unless otherwise specified.” The amendment also revises an explanatory note in Chapter One, Part A, Subpart 1(4)(d) (Probation and Split Sentences) to detail amendments to the Guidelines Manual related to the implementation of 28 U.S.C. § 994(j), first offenders, and “zero-point offenders.”

Part C – Impact of Simple Possession of Marihuana Offenses

Part C of the amendment revises the Commentary to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) 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. Specifically, Part C provides that a downward departure may be warranted if the defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person. Most commenters, including the Department of Justice, supported this change. See Letter from Jonathan J. Wroblewski, Dir., Crim. Div., U.S. Dep’t of Just., to Hon. Carlton W. Reeves, Chair, U.S. Sent’g Comm’n (Feb. 27, 2023), in U.S. SENT’G COMM’N, 2022–2023 AMENDMENT CYCLE PROPOSED AMENDMENTS/PUBLIC COMMENT (2023); see also U.S. SENT’G COMM’N, 2022–2023 AMENDMENT CYCLE PROPOSED AMENDMENTS/PUBLIC COMMENT (2023) (providing numerous public comment supporting the amendment).

The Commission also relied upon its recently published report on the impact of simple possession of marihuana offenses on sentencing. See U.S. SENT’G COMM’N, WEIGHING THE IMPACT OF SIMPLE POSSESSION OF MARIJUANA: TRENDS AND SENTENCING IN THE FEDERAL SYSTEM (2023), available at https://www.ussc.gov/research/research-reports/weighing- impact-simple-possession-marijuana. In that study, the Commission found that 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marihuana possession sentences in fiscal year 2021. Most such prior sentences were for state court convictions resulting in less than 60 days in prison or non- custodial sentences. The Commission also found informative that ten percent (10.2%) of these 4,405 offenders had no other criminal history points, and that for 40 percent (40.1%) of the 4,405 offenders (1,765), the criminal history points for prior marihuana possession sentences resulted in a higher Criminal History Category.

Amendment:
Part A (Status Points under §4A1.1)

…§4A1.1. Criminal History Category

The total criminal history points from §4A1.1 determine the criminal history category (I–VI) in the Sentencing Table in Chapter Five, Part A.

(a) Add 3 points for each prior sentence of imprisonment exceeding one year and one month.

(b) Add 2 points for each prior sentence of imprisonment of at least sixty days not counted in (a).

(d) Add 1 point for each prior sentence resulting from a conviction of a crime of violence that did not receive any points under (a), (b), or (c) above because such sentence was treated as a single sentence, up to a total of 3 points for this subsection.

(e) Add 1 point if the defendant (1) receives 7 or more points under subsections (a) through (d), and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.

Commentary

The total criminal history points from §4A1.1 determine the criminal history category (I–VI) in the Sentencing Table in Chapter Five, Part A. The definitions and instructions in §4A1.2 govern the computation of the criminal history points. Therefore, §§4A1.1 and 4A1.2 must be read together. The following notes highlight the interaction of §§4A1.1 and 4A1.2.

Application Notes:

§4A1.1(a). Three points are added for each prior sentence of imprisonment exceeding one year and one month. There is no limit to the number of points that may be counted under this subsection. The term “prior sentence” is defined at §4A1.2(a). The term “sentence of imprisonment” is defined at §4A1.2(b). Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than fifteen years prior to the defendant’s commencement of the instant offense is not counted unless the defendant’s incarceration extended into this fifteen-year period. See §4A1.2(e).

A sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted under this subsection only if it resulted from an adult conviction. See §4A1.2(d).

A sentence for a foreign conviction, a conviction that has been expunged, or an invalid conviction is not counted. See §4A1.2(h) and (j) and the Commentary to §4A1.2.

§4A1.1(b). Two points are added for each prior sentence of imprisonment of at least sixty days not counted in §4A1.1(a). There is no limit to the number of points that may be counted under this subsection. The term “prior sentence” is defined at §4A1.2(a). The term “sentence of imprisonment” is defined at §4A1.2(b). Where a prior sentence of imprisonment resulted from a revocation of probation, parole, or a similar form of release, see §4A1.2(k).

Certain prior sentences are not counted or are counted only under certain conditions:
A sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted. See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted only if confinement resulting from such sentence extended into the five-year period preceding the defendant’s commencement of the instant offense. See §4A1.2(d).

Sentences for certain specified non-felony offenses are never counted. See §4A1.2(c)(2).
A sentence for a foreign conviction or a tribal court conviction, an expunged conviction, or an invalid conviction is not counted. See §4A1.2(h), (i), (j), and the Commentary to §4A1.2. A military sentence is counted only if imposed by a general or special court-martial. See §4A1.2(g).

3 . §4A1.1(c). One point is added for each prior sentence not counted under §4A1.1(a) or (b). A maximum of four points may be counted under this subsection. The term “prior sentence” is defined at §4A1.2(a).

Certain prior sentences are not counted or are counted only under certain conditions:

A sentence imposed more than ten years prior to the defendant’s commencement of the instant offense is not counted. See §4A1.2(e).

An adult or juvenile sentence imposed for an offense committed prior to the defendant’s eighteenth birthday is counted only if imposed within five years of the defendant’s commencement of the current offense. See §4A1.2(d).

Sentences for certain specified non-felony offenses are counted only if they meet certain requirements. See §4A1.2(c)(1).

Sentences for certain specified non-felony offenses are never counted. See §4A1.2(c)(2).
A diversionary disposition is counted only where there is a finding or admission of guilt in a judicial proceeding. See §4A1.2(f).

A sentence for a foreign conviction, a tribal court conviction, an expunged conviction, or an invalid conviction, is not counted. See §4A1.2(h), (i), (j), and the Commentary to §4A1.2.

A military sentence is counted only if imposed by a general or special court-martial. See §4A1.2(g).

§4A1.1(d). In a case in which the defendant received two or more prior sentences as a result of convictions for crimes of violence that are treated as a single sentence (see §4A1.2(a)(2)), one point is added under §4A1.1(d) for each such sentence that did not result in any additional points under §4A1.1(a), (b), or (c). A total of up to 3 points may be added under §4A1.1(d). For purposes of this guideline, “crime of violence” has the meaning given that term in §4B1.2(a). See §4A1.2(p).

For example, a defendant’s criminal history includes two robbery convictions for offenses committed on different occasions. The sentences for these offenses were imposed on the same day and are treated as a single prior sentence. See §4A1.2(a)(2). If the defendant received a five-year sentence of imprisonment for one robbery and a four-year sentence of imprisonment for the other robbery (consecutively or concurrently), a total of 3 points is added under §4A1.1(a). An additional point is added under §4A1.1(d) because the second sentence did not result in any additional point(s) (under §4A1.1(a), (b), or (c)). In contrast, if the defendant received a one-year sentence of imprisonment for one robbery and a nine-month consecutive sentence of imprisonment for the other robbery, a total of 3 points also is added under §4A1.1(a) (a one-year sentence of imprisonment and a consecutive nine-month sentence of imprisonment are treated as a combined one-year-nine-month sentence of imprisonment). But no additional point is added under §4A1.1(d) because the sentence for the second robbery already resulted in an additional point under §4A1.1(a). Without the second sentence, the defendant would only have received two points under §4A1.1(b) for the one-year sentence of imprisonment5. §4A1.1(e). One point is added if the defendant (1) receives 7 or more points under §4A1.1(a) through (d), and (2) committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. Failure to report for service of a sentence of imprisonment is to be treated as an escape from such sentence. See §4A1.2(n). For the purposes of this subsection, a “criminal justice sentence” means a sentence countable under §4A1.2 (Definitions and Instructions for Computing Criminal History) having a custodial or supervisory component, although active supervision is not required for this subsection to apply. For example, a term of unsupervised probation would be included; but a sentence to pay a fine, by itself, would not be included. A defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence for the purposes of this provision if that sentence is otherwise countable, even if that sentence would have expired absent such warrant. See §4A1.2(m).

Background: Prior convictions may represent convictions in the federal system, fifty state systems, the District of Columbia, territories, and foreign, tribal, and military courts. There are jurisdictional variations in offense definitions, sentencing structures, and manner of sentence pronouncement. To minimize problems with imperfect measures of past crime seriousness, criminal history categories are based on the maximum term imposed in previous sentences rather than on other measures, such as whether the conviction was designated a felony or misdemeanor. In recognition of the imperfection of this measure however, §4A1.3 authorizes the court to depart from the otherwise applicable criminal history category in certain circumstances.

Subsections (a), (b), and (c) of §4A1.1 distinguish confinement sentences longer than one year and one month, shorter confinement sentences of at least sixty days, and all other sentences, such as confinement sentences of less than sixty days, probation, fines, and residency in a halfway house.

Section 4A1.1(de) adds one point if the defendant receives 7 or more points under §4A1.1(a) through (d) and was under a criminal justice sentence during any part of the instant offense.

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4A1.2. Definitions and Instructions for Computing Criminal History

(a) PRIOR SENTENCE

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(2) If the defendant has multiple prior sentences, determine whether those sentences are counted separately or treated as a single sentence. Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense). If there is no intervening arrest, prior sentences are counted separately unless (A) the sentences resulted from offenses contained in the same charging instrument; or (B) the sentences were imposed on the same day. Treat any prior sentence covered by (A) or (B) as a single sentence. See also §4A1.1(d).

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(m) EFFECT OF A VIOLATION WARRANT

For the purposes of §4A1.1(de), a defendant who commits the instant offense while a violation warrant from a prior sentence is outstanding (e.g., a probation, parole, or supervised release violation warrant) shall be deemed to be under a criminal justice sentence if that sentence is otherwise countable, even if that sentence would have expired absent such warrant.

(n) FAILURE TO REPORT FOR SERVICE OF SENTENCE OF IMPRISONMENT

For the purposes of §4A1.1(de), failure to report for service of a sentence of imprisonment shall be treated as an escape from such sentence.

Criminal History

*** (p) CRIME OF VIOLENCE DEFINED

For the purposes of §4A1.1(d), the definition of “crime of violence” is that set forth in §4B1.2(a).

PART C ― ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS

§4C1.1. Adjustment for Certain Zero-Point Offenders

(a) ADJUSTMENT.—If the defendant meets all of the following criteria:

(1) the defendant did not receive any criminal history points from Chapter Four, Part A;
(2) the defendant did not receive an adjustment under §3A1.4
(3) the defendant did not use violence or credible threats of violence in connection with the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the instant offense of conviction is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
(7) 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;
(8) the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);
(9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
(10) 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;

decrease the offense level determined under Chapters Two and Three by 2 levels.

(b) DEFINITIONS AND ADDITIONAL CONSIDERATIONS. —

Criminal History

(1) “Dangerous weapon,” “firearm,” “offense,” and “serious bodily injury” have the meaning given those terms in the Commentary to §1B1.1 (Application Instructions).

(2) “Sex offense” means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a recordkeeping offense; (iii) chapter 117 of title 18, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (iv) of this definition.

(3) In determining whether the defendant’s acts or omissions resulted in “substantial financial hardship” to a victim, the court shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to §2B1.1

(Theft, Property Destruction, and Fraud).

Application Notes:

Commentary

Application of Subsection (a)(6).—The application of subsection (a)(6) is to be determined independently of the application of subsection (b)(2) of §2B1.1 (Theft, Property Destruction, and Fraud).
Upward Departure.—An upward departure may be warranted if an adjustment under this guideline substantially underrepresents the seriousness of the defendant’s criminal history. For example, an upward departure may be warranted if the defendant has a prior conviction or other comparable judicial disposition for an offense that involved violence or credible threats of violence.

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5C1.1 Imposition of a term of Imprisonment

…

Zero-Point Offenders.—

(A) Zero-Point Offenders in Zones A and B of the Sentencing Table.—If the defendant received an adjustment under §4C1.1 (Adjustment for Certain Zero-Point Offenders) and the defendant’s applicable guideline range is in Zone A or B of the Sentencing Table, a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3), is generally appropriate. See 28 U.S.C. § 994(j).

(B) Departure for Cases Where the Applicable Guideline Range Overstates the Gravity of the Offense.—A departure, including a departure to a sentence other than a sentence of imprisonment, may be appropriate if the defendant received an adjustment under §4C1.1 (Adjustment for Certain Zero-Point Offenders) and the defendant’s applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense. See 28 U.S.C. § 994(j).

ISSUE FOR COMMENT: RETROACTIVITY

This document sets forth the unofficial text of an issue for comment promulgated by the Commission and is provided only for the convenience of the user. As with all amendments that the Commission has voted to promulgate but has not yet officially submitted to Congress and the Federal Register, authority to make technical and conforming changes may be exercised and motions to reconsider may be made. Once the amendments have been submitted to Congress and the Federal Register, official text of the issue for comment will be posted on the Commission’s website at www.ussc.gov and will be available in a forthcoming edition of the Federal Register

Written public comment should be received by the Commission not later than June 23, 2023. Public comment received after the close of the comment period may not be considered. All written comment should be sent to the Commission via any of the following two methods: (1) comments may be submitted electronically via the Commission’s Public Comment Submission Portal at https://comment.ussc.gov; or (2) comments may be submitted by mail to the following address: United States Sentencing Commission, One Columbus Circle, N.E., Suite 2-500, Washington, D.C. 20002-8002, Attention: Public Affairs – Issue for Comment on Retroactivity. For further information, see the full contents of the official notice when it is published in the Federal Register (available at www.ussc.gov).

The issue for comment is as follows:

REQUEST FOR COMMENT ON PARTS A AND B OF THE CRIMINAL HISTORY AMENDMENT, RELATING TO “STATUS POINTS” AND CERTAIN “ZERO-POINT” OFFENDERS

On May 1, 2023, the Commission submitted to Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2023, unless Congress acts to the contrary. Such amendments and the reasons for amendment are included in this notice.

Section 3582(c)(2) of title 18, United States Code, provides that “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Pursuant to 28 U.S.C. § 994(u), “[i]f the Commission reduces the term of imprisonment recommended in the guidelines applicable to a particular offense or category of offenses, it shall specify in what circumstances and by what amount the sentences of prisoners serving terms of imprisonment for the offense may be reduced.”

The criminal history amendment has the effect of lowering guideline ranges. The Commission intends to consider whether, pursuant to 18 U.S.C. 3582(c)(2) and 28 U.S.C.
§ 994(u), Parts A and B of this amendment, relating to the impact of “status points” at §4A1.1 (Criminal History Category) and offenders with zero criminal history points at new §4C1.1 (Adjustment for Certain Zero-Point Offenders), should be included in subsection (d) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. In considering whether to do so, the Commission will consider, among other things, a retroactivity impact analysis and public comment. Accordingly, the Commission seeks public comment on whether it should make Parts A and B of this amendment available for retroactive application. To help inform public comment, the retroactivity impact analysis will be made available to the public as soon as practicable.

The Background Commentary to §1B1.10 lists the purpose of the amendment, the magnitude of the change in the guideline range made by the amendment, and the difficulty of applying the amendment retroactively to determine an amended guideline range under §1B1.10(b) as among the factors the Commission considers in selecting the amendments included in §1B1.10(d). To the extent practicable, public comment should address each of these factors.

The Commission seeks comment on whether it should list Parts A and B of the amendment, addressing the impact of “status points” at §4A1.1 and offenders with zero criminal history points at new §4C1.1, in subsection (d) of §1B1.10 as changes that may be applied retroactively to previously sentenced defendants. For each of these parts, the Commission requests comment on whether that part should be listed in subsection (d) of §1B1.10 as an amendment that may be applied retroactively.

If the Commission does list one or both parts of the amendment in subsection (d) of §1B1.10 as an amendment that may be applied retroactively to previously sentenced defendants, should the Commission provide further guidance or limitations regarding the circumstances in which and the amount by which sentences may be reduced?

Guideline Amendments that pertain to Career Offenders

We continue our coverage of the pending sentencing commission amendments. This portion will cover the changes in the guidelines as they pertain to potential career offenders. Sadly, these proposed amendments do not appear to be favorable to the inmate population.

These guidelines show that as of November 1, 2023 inchoate crimes (such as attempted crimes, conspiracy crimes and aiding and abetting crimes) will be included in the career offender guidelines (as opposed to the commentary). This will clear up the circuit split and indicate that these crimes can be career offender predicates. These amendments also make it clear that Hobbs Act robbery is a “crime of violence” for the career offender guidelines. These are not great but I wanted you to have the truth and hear it from me.

This newsletter is going to take two parts to send out. This means that we’ll push the explainer and the EQUAL Act to next weekend. When you get the Friday newsletter don’t quite delete our info, as there will be weekend editions as well.

I’ve been fielding a ton of questions about the amendments over at [email protected] so if you have questions then please ask them there.

CAREER OFFENDER

Reason for Amendment: This amendment is a result of the Commission’s work on §4B1.2 (Definitions of Terms Used in Section 4B1.1) regarding several application issues that have arisen in the context of the career offender guideline. As part of this study, the Commission considered varying case law interpreting certain guideline definitions and commentary to the guideline. Informed by the case law, public comment and relevant sentencing data, this amendment specifically addresses application issues regarding the meaning of “robbery” and “extortion” and the treatment of inchoate offenses. The amendment also makes necessary changes to further implement the congressional directive at 28 U.S.C. § 994(h).

The amendment makes several changes to address a circuit conflict regarding the authoritative weight afforded to certain commentary to §4B1.2. The commentary to §4B1.2 prior to the amendment provided that the definitions of “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, conspiring, and attempting to commit such offenses. Although most circuits had previously held that this commentary was authoritative under Stinson v. United States, 508 U.S. 36 (1993), several courts have now concluded that the guideline definition of “controlled substance offense” does not include inchoate offenses because such offenses are not expressly included in the guideline text. See United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); United States v. Campbell, 22 F.4th 438 (4th Cir. 2022); United States v. Nasir, 17 F.4th 459 (3d Cir. 2021) (en banc); United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); United States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018). Several courts held that the Commission exceeded its authority under Stinson when it attempted to incorporate inchoate offenses into §4B1.2(b)’s definition through the commentary, finding that the commentary can only interpret or explain the guideline, it cannot expand its scope by adding qualifying offenses. See, e.g., Havis, 927 F.3d at 385–87. More recently, courts have relied on Kisor v. Wilkie, 139 S. Ct. 2400 (2022), to hold that guideline commentary should not be afforded deference unless the guideline text is genuinely ambiguous. See, e.g., Dupree, 57 F.4th at 1275. Applying the Kisor holding to the guidelines, courts have concluded that the plain language definition of “controlled substance offense” in §4B1.2 unambiguously excludes inchoate offenses. Similarly, courts have held that “crime of violence” excludes conspiracies because the §4B1.2 commentary does not warrant Kisor deference. See, e.g., United States v. Abreu, 32 F.4th 271, 277–78 (3d Cir. 2022).

The amendment addresses this circuit conflict by moving, without change, the commentary including certain inchoate and accessory offenses in the definitions of “crime of violence” and “controlled substance offense” to the text of the guideline. While not the subject of the circuit conflict, the amendment also moves the definitions of enumerated offenses

(i.e., “forcible sex offense” and “extortion”) and “prior felony conviction” from the commentary to a new subsection (e) in the guideline to avoid similar challenges to their applicability.

The amendment next addresses a concern that Hobbs Act robbery offenses no longer qualify as “crimes of violence” under §4B1.2. In 2016, the Commission amended §4B1.2 to, among other things, delete the “residual clause” and revise the “enumerated clause” by moving enumerated offenses that were previously listed in the commentary to the guideline itself. Although the guideline generally relies on existing case law for purposes of defining most enumerated offenses, the amendment added to the Commentary to §4B1.2 definitions for two of the enumerated offenses: “forcible sex offense” and “extortion.” Consistent with the Commission’s goal of focusing the career offender and related enhancements on the most dangerous offenders, the amendment narrowed the generic definition of extortion by limiting it to offenses having an element of force or an element of fear or threat “of physical injury,” as opposed to non-violent threats such as injury to reputation. As such, extortion is defined as “obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.”

After the 2016 amendment, every Court of Appeals addressing the issue under the guidelines has held that Hobbs Act robbery is not a “crime of violence” under §4B1.2, reasoning that neither generic robbery nor the guidelines definition of extortion encompass threats against property while the Hobbs Act defines “robbery” as, among other things, “the unlawful taking or obtaining of personal property . . . by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property . . . . ”

See 18 U.S.C. § 1951(b)(1) (emphasis added); United States v. Chappelle, 41 F.4th 102
(2d Cir. 2022); United States v. Scott, 14 F.4th 190 (3d Cir. 2021); United States v. Prigan,
8 F.4th 1115 (9th Cir. 2021); United States v. Green, 996 F.3d 176 (4th Cir. 2021); Bridges v. United States, 991 F.3d 793 (7th Cir. 2021); United States v. Eason, 953 F.3d 1184
(11th Cir. 2020); United States v. Camp, 903 F.3d 594 (6th Cir. 2018); United States v. O’Connor, 874 F.3d 1147 (10th Cir. 2017).

The amendment amends §4B1.2 to add to the new subsection (e) a definition of “robbery” that mirrors the “robbery” definition at 18 U.S.C. § 1951(b)(1) and makes a conforming change to §2L1.2 (Illegal Reentry), which also includes robbery as an enumerated offense. The Commission views the recent decisions holding that Hobbs Act robbery is not a crime of violence under the guidelines as an unintended consequence of the 2016 amendment to the career offender guideline meant to remove threats to reputation. In addition, the Commission conducted an analysis of recent cases and found that the Hobbs Act robberies overwhelmingly involved violence.

The amendment clarifies that “actual or threatened force” for purposes of the new “robbery” definition is “force sufficient to overcome a victim’s resistance.” The Commission concludes that such definition, relying on the Supreme Court’s decision in Stokeling v. United States, 139 S. Ct. 544 (2019), would eliminate potential litigation over the meaning of actual or threatened force in this context and is consistent with the level of force necessary for a robbery under the force clause.

Finally, the amendment revises the definition of “controlled substance offense” in §4B1.2(b) to include “an offense described in 46 U.S.C. § 70503(a) or § 70506(b).” The directive at
28 U.S.C. § 994(h) instructs the Commission to assure that “the guidelines specify a term of imprisonment at or near the maximum term authorized” for offenders who are 18 years or older and have been convicted of a felony that is, and have previously been convicted of two or more felonies that are, among other things, “an offense described in . . . chapter 705 of title 46.” See 28 U.S.C. § 994(h). In 2016, Congress enacted the Coast Guard Authorization Act of 2015, Pub. L. 114–120 (2016), which amended Chapter 705 of Title 46 by adding two new offenses to section 70503(a), in subparagraphs (2) and (3). Following this statutory change, these two new offenses are not covered by the pre-amendment definition of “controlled substance offense” in §4B1.2 as required by the directive.

Amendment:
§2L1.2. Unlawfully Entering or Remaining in the United States

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Commentary

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Application Notes:
2. Definitions.—For purposes of this guideline:

“Crime of violence” means any of the following offenses under federal, state, or local law: murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c), or any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of another. “Forcible sex offense” includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States. “Robbery” is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase “actual or threatened force” refers to force that is sufficient to overcome a victim’s resistance. “Extortion” is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.

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4B1.2. Definitions of Terms Used in Section 4B1.1

(a) CRIME OF VIOLENCE.—The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another,; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

(b) CONTROLLED SUBSTANCE OFFENSE.—The term “controlled substance offense” means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.; or
(2) is an offense described in 46 U.S.C. § 70503(a) or § 70506(b).

(c) TWO PRIOR FELONY CONVICTIONS.—The term “two prior felony convictions” means (1) the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e., two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense), and (2) the sentences for at least two of the aforementioned felony convictions are counted separately under the provisions of §4A1.1(a), (b), or (c). The date that a defendant sustained a conviction shall be the date that the guilt of the defendant has been established, whether by guilty plea, trial, or plea of nolo contendere.

(d) INCHOATE OFFENSES INCLUDED.—The terms “crime of violence” and “controlled substance offense” include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.

(e) ADDITIONAL DEFINITIONS.—

(1) FORCIBLE SEX OFFENSE.—{“Forcible sex offense” includes where consent to the conduct is not given or is not legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced. The offenses of sexual abuse of a minor and statutory rape are included only if the sexual abuse of a minor or statutory rape was (A) an offense described in 18 U.S.C. § 2241(c) or (B) an offense under state law that would have been an offense under section 2241(c) if the offense had occurred within the special maritime and territorial jurisdiction of the United States.}*

(2) EXTORTION.—{“Extortion” is obtaining something of value from another by the wrongful use of (A) force, (B) fear of physical injury, or (C) threat of physical injury.}*

(3) ROBBERY.—“Robbery” is the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury, immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining. The phrase “actual or threatened force” refers to force that is sufficient to overcome a victim’s resistance.

(4) PRIOR FELONY CONVICTION.—{“Prior felony conviction” means a prior adult federal or state conviction for an offense punishable by death or imprisonment for a term exceeding one year, regardless of whether such offense is specifically designated as a felony and regardless of the actual sentence imposed. A conviction for an offense committed at age eighteen or older is an adult conviction. A conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted (e.g., a federal conviction for an offense committed prior to the defendant’s eighteenth birthday is an adult conviction if the defendant was expressly proceeded against as an adult).}*

Further Considerations Regarding “Crime of Violence” and “Controlled Substance Offense.—For purposes of this guideline—
Unlawfully possessing a listed chemical with intent to manufacture a controlled substance (21 U.S.C. § 841(c)(1)) is a “controlled substance offense.”

Unlawfully possessing a prohibited flask or equipment with intent to manufacture a controlled substance (21 U.S.C. § 843(a)(6)) is a “controlled substance offense.”

Maintaining any place for the purpose of facilitating a drug offense (21 U.S.C. § 856) is a “controlled substance offense” if the offense of conviction established that the underlying offense (the offense facilitated) was a “controlled substance offense.”

Using a communications facility in committing, causing, or facilitating a drug offense (21 U.S.C. § 843(b)) is a “controlled substance offense” if the offense of conviction established that the underlying offense (the offense committed, caused, or facilitated) was a “controlled substance offense.”

A violation of 18 U.S.C. § 924(c) or § 929(a) is a “crime of violence” or a “controlled substance offense” if the offense of conviction established that the underlying offense was a “crime of violence” or a “controlled substance offense”. (Note that in the case of a prior 18 U.S.C. § 924(c) or § 929(a) conviction, if the defendant also was convicted of the underlying offense, the sentences for the two prior convictions will be treated as a single sentence under §4A1.2 (Definitions and Instructions for Computing Criminal History).)

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