In November 2023, the United States Sentencing Commission has recently approved proposed alterations to the Federal Sentencing Guidelines, marking the first revisions in half a decade. These amendments, outlined in more detail below, promise notable shifts in federal sentencing practices.
Criminal History Calculation
A. Amendments
The 2023 amendment to the criminal history guidelines in Chapter Four introduces two significant changes aimed at narrowing the guidelines' scope for specific individuals. Firstly, the amendment abolishes the inclusion of "status points" in certain situations. Previously, these points were assigned if the defendant committed the current offense while under any form of criminal justice supervision, such as probation, parole, or imprisonment. With the revision, the provision concerning "status points," now relocated in the reorganized U.S.S.G. §4A1.1(e), will only apply to individuals with more extensive criminal histories according to the guidelines. Consequently, individuals with lesser criminal histories, represented by six or fewer criminal history points, will no longer accumulate "status points," even if the offense occurred during a period of criminal justice supervision.
Secondly, the amendment introduces a new guideline in Chapter Four, which offers a two-level decrease from the offense level for offenders who have not received any criminal history points under Chapter Four and whose current offense did not involve specific prohibited criteria. The proposed wording of U.S.S.G. §4C1.1 defines “zero point offenders” as those with 0 criminal history points, including offenders with no previous convictions, offenders whose prior convictions are not counted because they fall outside the time limits outlined in subsections (d) and (e) of U.S.S.G. §4A1.2, and offenders whose prior convictions are not considered in computing the Criminal History Calculations for reasons other than their “staleness” (sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions)
Though some zero point offenders are excluded from eligibility, therefore additional criteria must be met in addition to having zero criminal history points, which include:
- the defendant did not receive an adjustment under §3A1.4 (Terrorism)
- the defendant did not use violence or credible threats of violence in connection with the offense
- the offense did not result in death or serious bodily injury
- the instant offense of conviction is not a sex offense
- the defendant did not personally cause substantial financial hardship
- the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
- the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);
- the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
- - the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
B. Retroactivity
The Commission’s Rules of Practice and Procedure address retroactive application of amendments and list the procedures that the Commission will follow when considering retroactivity. Under such circumstances, the Commission is required to vote to publish a request for comment on whether to make the amendment available for retroactive application. The Commission’s vote resulted in the allocation for delayed radioactive application of the amendment relating to criminal history.
Acquitted Conduct
In previous sentencing guidelines, judges often had the discretion to consider “acquitted conduct,” meaning crimes for which an individual had been acquitted, when determining the suitable sentence for the crime of conviction. While acquitted conduct is not explicitly mentioned in the Guidelines Manual, courts have consistently allowed its consideration under U.S.S.G. §1B1.3 (Relevant Conduct) in conjunction with U.S.S.G. §1B1.4 (Information to be Used in Imposing Sentence) and U.S.S.G. §6A1.3 (Resolution of Disputed Facts). This practice faced criticism for violating the principle of double jeopardy and eroding the credibility of the criminal justice system.
The amendment alters U.S.S.G. §1B1.3 by introducing a new subsection (c), stating that acquitted conduct shall not be deemed relevant conduct for determining the guideline range unless the conduct was admitted by the defendant during a plea colloquy or was proven by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the offense of conviction. This revision defines “acquitted conduct” as the conduct underlying a charge for 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 a similar Motion under the applicable law of a State, local, or tribal jurisdiction. Additionally, the amendment modifies the Commentary to U.S.S.G. §6A1.3 (Resolution of Disputed Factors) to align with these changes regarding the use of acquitted conduct in determining the guideline range.
The proposed amendments could significantly impact the judge’s discretion in determining a suitable sentence, as any deviation from the advisory guideline range must be grounded in and/or supported by permissible reasons
First Step Act
The amendment has significant implications for the First Step Act, primarily by broadening the scope of specified extraordinary and compelling reasons that can justify sentence reductions. This expansion involves several key adjustments:
- Introducing two additional subcategories under the "Medical Circumstances of the Defendant" rationale.
- Making three alterations to the "Family Circumstances" rationale.
- Introducing a new criterion termed "Victim of Abuse."
- Introducing another new criterion termed "Unusually Long Sentence," which allows a judge to view a non-retroactive change in sentencing law as an extraordinary and compelling reason under specific conditions.
Furthermore, the amendment clarifies that while rehabilitation alone does not constitute an extraordinary and compelling reason, it may be considered in conjunction with other factors.
The proposed categories that could render an inmate eligible for compassionate release include:
- Having a medical condition necessitating long-term or specialized medical care unavailable from the Bureau of Prisons (BOP), without which the individual faces a serious decline in health or mortality.
- Being housed at a prison affected by or at risk of an ongoing outbreak of infectious disease or a declared public health emergency, with the individual facing heightened health risks due to personal health factors and custodial status.
- Having an incapacitated parent with the individual being the sole available caregiver.
- Demonstrating similar family circumstances involving any immediate family member or someone with a relationship akin to an immediate family member, where the individual would be the only available caregiver.
- Being a victim of sexual assault by a corrections officer.
- Having received an unusually lengthy sentence and having served at least 10 years, with potential consideration of changes in the law (excluding Guidelines) to assess whether an extraordinary and compelling reason exists, particularly if such changes create a significant disparity between the current sentence and the likely sentence under current law at the time of the motion.
Drug Offenses
The amendment further modifies subsections (a)(1) and (a)(3) of U.S.S.G. §2D1.1 to align the guideline's criteria for triggering enhanced mandatory minimum penalties with the updated statutory provisions. Specifically, the proposed revision replaces the term “similar offense” found in these guideline provisions with the appropriate terminology outlined in the relevant statutory provisions, as amended by the First Step Act.
Additionally, the Commission has sanctioned an amendment to the criminal history commentary, advising judges to adopt a more lenient approach towards prior marijuana possession offenses during the criminal history calculation process. This entails making downward adjustments for offenses that many states have either decriminalized or legalized. Although the amendment does not entirely eliminate marijuana convictions as a factor in criminal history assessment, it revises the commentary within the guidelines to “include sentences resulting from possession of marijuana offenses as an example of circumstances warranting a downward departure from the defendant’s criminal history.”
The amendments to the Federal Sentencing Guidelines in 2023 signify a significant stride towards enhancing fairness and efficiency within the criminal justice system.
At Hartwig Law, our team of seasoned attorneys possesses extensive experience in representing individuals in federal sentencing proceedings at the trial court level. We are dedicated to staying updated on the evolving landscape of legislation and court decisions to ensure our clients receive the most thorough and effective legal representation possible.