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United States Sentencing Commission Considers Guideline Amendments for Upcoming 2022-2023 Term

A now whole Sentencing Commission considers guideline amendments for the 2022-2023 cycle including compassionate release changes.

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: 

(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 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 6th, 7th or 11th 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.

If anything here applies to you, contact us today.

At The Law Office of Jeremy Gordon, we fight aggressively for our clients. We are experienced, and know what it takes to present a successful defense in a federal criminal case. For prompt, courteous and skilled representation as your federal criminal defense attorney, contact us today to schedule a free phone consultation.
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