United States Sentencing Commission Considers Guideline 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.

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.