Sweeping changes to the US Sentencing Guidelines are taking effect on Wednesday, after Congress took no action to veto the US Sentencing Commission’s proposed amendments.
The updates address a wide range of issues including, but not limited to, sentencing reductions, criminal history points, career offender enhancements, firearms offenses, and fake pills.
It’s the first time the guidelines have been revised in years, due to the Commission’s lack of a quorum between between January 2019 and August 2022.
The amendments will have significant implications for some defendants. Although the guidelines aren’t binding, they are—at a minimum—the starting point for federal judges.
Amendment number 821, which deals with the effects of a defendant’s criminal history, could significantly reduce sentences for a broad swath of defendants.
Part A of the amendment reduces the number of criminal history points given to a defendant already under a “criminal justice sentence,” including probation, parole, supervised release, imprisonment, work release, or escape status.
The earlier provision, section 4A1.1(d), added two criminal history points if the defendant was under a criminal justice sentence when the offense was committed. Now the so-called status points provision, redesignated at section 4A1.1(e), imposes only one additional criminal history point and applies only to offenders with more serious criminal histories.
Part B of the amendment provides for a decrease of two levels from the offense level for defendants without any criminal history points, so long as there aren’t certain aggravating factors in play. Aggravating factors include, among other things, use or threats of violence.
Although a significant change, its practical effects may vary.
“Many judges already treat ‘never been in trouble before’ as a mitigating factor at sentencing,” Philadelphia-based defense attorney Lisa Mathewson said.
Even so, for defendants before a judge who still treats the guidelines as more-or-less binding, Mathewson said the two-point reduction will help.
Mathewson expressed some concern, however, about the impact the new guideline could have on the remainder of a court’s analysis.
“With judges who already approach sentencing holistically, I fear the reduction could invite them to set aside first-time-offender status once the Guidelines calculation is done—instead of considering in a broader context what it means about the defendant’s character,” she said.
Part C of the amendment further provides for a downward departure if the defendant received criminal history points from a sentence for possession of marijuana for personal use.
The effect of even a one-level reduction can be substantial, potentially shifting the guidelines range by months and sometimes years. The changes made in Parts A and B will apply retroactively, but not until Feb. 1, 2024, meaning currently incarcerated defendants can begin asking courts to modify their existing sentences, but any orders granting retroactive relief under the amendment can’t take effect until then.
The delay is meant “to ensure that, to the extent practicable, all individuals who are to be released have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry into society,” the Commission said.
The Commission estimates that more than 11,000 incarcerated individuals will have a lower sentencing range under Part A, with a possible average sentence reduction of 11.7%, while more than 7,000 incarcerated individuals will be eligible for a sentencing reduction under Part B, with a possible average sentence reduction of 17.6%.
Another major amendment updates the guidelines to conform with the First Step Act of 2018.
Specifically, Amendment No. 814 revises section 1B1.13—the Commission’s “Compassionate Release” policy statement—to reflect that a defendant, not just a warden, is authorized to file a motion for early release.
The amendment also significantly expands the list of “extraordinary and compelling reasons” that may justify a sentence reduction.
They include, among other things, new subcategories of medical circumstances not expressly addressed in the prior policy statement, along with a provision that provides special consideration for individuals who have been victims of sexual assault at the hands of Bureau of Prisons personnel.
They also resolve a circuit split over when, if ever, non-retroactive changes in law may be considered as extraordinary and compelling circumstances.
Now, a defendant who has served at least 10 years of an unusually long sentence can file a motion for a sentence reduction if an intervening change in the law has resulted in a gross disparity between the sentence being served and the sentence that would have likely been imposed at the time the motion is filed.
It’s a significant development for defendants facing disproportionately high sentences.
“The First Step Act was just that, a first step, with more to be taken. But when the law catches up to the fact that too many people are locked up for far too long for certain crimes, there’s no legitimate reason to keep some of them there just because they were sentenced before lawmakers finally did something about it,” Mathewson said.
The remaining amendments are available in full on the US Sentencing Commission’s website.
Continue ReadingTo contact the reporter on this story: Holly Barker in Washington at hbarker@bloombergindustry.com
To contact the editor responsible for this story: Nicholas Datlowe at ndatlowe@bloombergindustry.com
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