GUEST BLOG: Breaking Down the Recent Amendments as Incorporated in the 2023 Federal Sentencing Guidelines

The Federal Docket

December 28, 2023

Guest Blog Post by Zachary Newland of Newland Legal

The 2023 version of the United States Sentencing Guidelines took effect on November 1, 2023. Now that the Sentencing Commission has finally regained a voting quorum for the first time since 2018, there are substantial changes to the newest version of the Guidelines Manual. Some of the most notable changes include the retroactive Amendment 821, which affects how criminal history points are calculated, and whether a departure for “zero-point offenders” is applicable. The 2023 Guidelines also make substantial changes to the eligibility requirements for seeking a reduction in sentence commonly referred to as “compassionate release.” Amendment 821 and the compassionate release amendments have garnered much attention recently, but the Guidelines include other amendments that have not been the topic of much discussion.

Breaking Down the New Amendments in the 2023 Guidelines Manual

I. Amendment 821

In August 2023, the Sentencing Commission voted to make Parts A and B of Amendment 821 retroactive. The Commission has estimated that retroactive application of Amendment 821 will affect over 18,000 federal inmates. Defendants can seek retroactive relief by filing a motion pursuant to 18 U.S.C. § 3582(c)(2) if they meet the qualifications for each amendment.

Part A – Status Point Offenders

Part A of Amendment 821 changes the way criminal history points are scored under the former U.S.S.G. § 4A1.1. Prior to the amendment, a defendant received two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d) (2021).

Part A of Amendment 821 alters the former § 4A1.1(d) by adding new language to 4A1.1(e):

“Add 1 point if the defendant (1) receives 7 or more points under subsection (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.” Accordingly, defendants will no longer receive any points for being under a criminal justice sentence unless they already have at least 7 criminal history points.

In terms of retroactivity, if a criminal defendant previously received 2 criminal history points under the old 4A1.1(d), they may now be eligible for a 1-2 point reduction in their criminal history score. A defendant with less than 7 points, not including the 2 points under 4A1.1(d), would now receive zero points. If the defendant had 7 or more points, they would still receive a 1-point reduction to their criminal history score.

How does a 1 to 2 point reduction in criminal history score lower a sentence? Depending on the defendant’s criminal history score, a reduction could lower their Criminal History Category and yield a lower guideline sentencing range. For example, a defendant with 5 criminal history points is placed in Criminal History Category III. If the defendant’s total offense level was 28, their guideline range would be 97-121 months imprisonment. But if Part A applies and they receive 2-points off their criminal history score, that would lower their Criminal History Category to II and corresponding range to 87 to 108 months.

Another example would be a defendant in Criminal History Category V with 10 criminal history points. If they are eligible for Part A, they would receive a one-point reduction, which would take them to Category IV. Using a total offense level of 28 again, this would lower their guideline range from 130-162 months down to 110-137 months.

It should be noted that a reduction under Amendment 821 is not automatic. The defendant, court, or government must first move for a reduction under 18 U.S.C. § 3582(c)(2). And even if the defendant is eligible because application of the new Amendment would lower their applicable guidelines range, the court still has broad discretion in determining whether to grant a reduction and to what extent. In doing so, the court is required to consider the sentencing factors listed under 18 U.S.C. § 3553(a). Additionally, some circumstances may make a defendant who received an enhancement under § 4A1.1(d) ineligible. Some examples would include: (1) a reduction under Amendment 821 does not lower the Criminal History Category or Guideline range; (2) the defendant was sentenced to the mandatory minimum (and the court is bound to the minimum by statute); and (3) the defendant was sentenced below the amended guideline range and it was not the result of a government motion under U.S.S.G. § 5K1.1, 18 U.S.C. § 3553(e), or Rule 35(b) of the Federal Rules of Criminal Procedure.

Part B – Zero-Point Offenders

The second part of Amendment 821 only applies to federal defendants who receive no criminal history points and meet all criteria set forth under the newly added U.S.S.G. § 4C1.1. If the defendant meets these qualifications, their offense level is decreased by two. The criteria listed in this guidelines provision include:

(1) the defendant received no criminal history points;

(2) the defendant did not receive an enhancement for terrorism 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 offense 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, etc. a firearm or dangerous weapon in connection with the offense;

(8) the offense is not covered under § 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 continuing a criminal enterprise under 21 U.S.C. § 848.

Given the long list of qualifications, and the short list of definitions and commentary included in § 4C1.1, retroactively seeking a reduction under Part B is a bit more complicated than Part A. A few things to note are that some of the criteria will require fact-finding by the sentencing court. Criteria involving conduct or acts committed “in connection with the offense” would require a determination showing that a defendant’s possession of a firearm, for example, was “in connection” with their offense. See § 4C1.1(a)(3) and (a)(7).

Another example would be application of the criteria under subsection (a)(6), which would require a finding as to whether the defendant personally caused substantial financial hardship. The commentary notes that even if a defendant received an enhancement under § 2B1.1(b)(2), the court is required to determine subsection (a)(6) independently from the § 2B1.1 enhancement. U.S.S.G. § 4C1.1, cmt. app. n.1.

One other issue that has already caused quite a lot of confusion is the language under subsection (b)(10). Arguably, to be found ineligible under (b)(10), the defendant would have had to receive a leadership enhancement and have been found to be engaged in CCE under 21 U.S.C. § 848. However, that same language has used the Guidelines for safety valve relief, and the Sixth and Seventh Circuits have found that having just one or the other is disqualifying. United States v. Bazel, 80 F.3d 1140, 1143 (6th Cir. 1996); United States v. Draheim, 958 F.3d 651, 660 (7th Cir. 2020). The Commission has proposed an amendment to the 2024 Guidelines addressing this issue.

Part C – Simple Possession of Marijuana

Part C is not retroactive. This unfortunately means that federal defendants whose sentences have become final cannot benefit from this part of the amendment. However, it is does provide individuals whose sentences are not yet final to seek a downward departure from the otherwise applicable sentencing guideline.

Part C revises the commentary to U.S.S.G. § 4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) which provides examples of when a downward departure from the guidelines may be warranted. Under the new commentary to § 4A1.3, a downward departure should be considered 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. U.S.S.G. § 4A1.3, cmt. app. n.3(A)(ii).

II. Compassionate Release – Defining Extraordinary and Compelling Circumstances

When the First Step Act of 2018 was enacted into law, it made a substantial change to 18 U.S.C. § 3582(c)(1)(A) that allowed federal prisoners to seek a reduction in sentence on their own motion based on “extraordinary and compelling circumstances.” 18 U.S.C. § 3582(c)(1)(A)(i).

Prior to the First Step Act, only the Bureau of Prisons could file a motion for “compassionate release” under § 3582(c)(1)(A). When the Act took effect, thousands of federal inmates sought relief. The problem, however, was that § 3582 required the district court to consider whether a reduction was “consistent with applicable policy statements issued by the Sentencing Commission[.]” But the Sentencing Commission had been without a voting quorum since 2018, and it was thus unable to amend the applicable policy statement to fit with the First Step Act.

This ultimately led many courts to find that there was no applicable policy statement, and federal district courts were therefore free to determine what constitutes “extraordinary and compelling” on their own. The Eleventh Circuit was the only circuit to hold that the old language contained in U.S.S.G. § 1B1.13 was still binding on prisoner-filed compassionate release motions. United States v. Bryant, 996 F.3d 1243 (11th Cir. 2021).

While the Eleventh Circuit was an outlier on the relevant policy statements applicable to compassionate release, a significant split among the circuit courts arose as to whether a non-retroactive change in law could be considered extraordinary and compelling. On one side, the First, Fourth, Ninth, and Tenth Circuits had held that a non-retroactive change in law could be considered where such change created a sentencing disparity among defendants.[1] On the other side of the split were the Third, Fifth, Sixth, Seventh, Eighth, and D.C. Circuits.[2]

 In order to address these issues and splits among the circuits, the Sentencing Commission amended U.S.S.G. § 1B1.13 and provided an expanded definition of “extraordinary and compelling circumstances” that also includes, to a limited extent, non-retroactive changes in law. Below is a summary of what circumstances a court may now find constitute extraordinary and compelling for compassionate release purposes.

(1) Medical Circumstances of the Defendant: a defendant may seek compassionate release based on a terminal illness; serious physical or medical condition; serious functional or cognitive impairment; deteriorating physical or mental health related to aging; a medical condition that requires long-term or specialized medical care; and being at imminent risk medical complications caused by an infection of an ongoing outbreak of infectious disease or ongoing public health emergency. U.S.S.G. § 1B1.13(b)(1)(A)–(D) (2023).

(2) Age of the Defendant: if the defendant is (a) at least 65 years old; (b) experiencing deteriorating physical or mental health because of the aging process; and (c) has served at least 10 years or 75 percent of their sentence, whichever is less

(3) Family Circumstances: a defendant can seek compassionate release if the defendant’s minor child’s caregiver dies or is incapacitated, or the caregiver of a child older than 18 who is incapable of self-care; the defendant’s spouse or registered partner becomes incapacitated and the defendant is the only available caregiver; the defendant’s parent becomes incapacitated and the defendant is the only available caregiver for the parent; or similar circumstances involving an immediate family member. § 1B1.13(b)(3)(A)–(D).

(4) Victim of Abuse: a defendant can now seek compassionate release when they were a victim of abuse while in custody. The abuse may be sexual or physical, must have been committed by or at the direction of a correctional officer, an employee or contractor of the Bureau of Prisons, or any other person who had custody and control over the defendant. The defendant must establish the misconduct either by providing evidence of a conviction in a criminal case, a finding of admission or liability in a civil case, or a finding in an administrative proceeding, unless the proceedings are unduly delayed and the defendant is in imminent danger.

(5) Other Reasons: this provides somewhat of a catch-all provision where the defendant may present any other circumstances not listed above, or a combination of above circumstances, that are similar in magnitude.

6) Sentencing Disparity/Change in Law: A defendant who received has served at least 10 years of a term of imprisonment may seek a compassionate release based on a non-retroactive change in law where such a change has produced a gross disparity between the sentence being served and the sentence that would likely be imposed today.

III. Reduction for Acceptance of Responsibility

The vast majority of federal criminal defendants ultimately enter a guilty plea rather than proceeding to trial. One of the benefits of a guilty plea is the reduction in offense level under U.S.S.G. § 3E1.1 for acceptance of responsibility. The Guidelines have provided for a two-level reduction for clear demonstration of acceptance of responsibility. U.S.S.G. § 3E1.1(a). An additional one-point reduction has been available upon government motion if the defendant timely enters a guilty plea thus allowing the government to avoid trial preparation. U.S.S.G. § 3E1.1(b).

Over the years, there have been significant circuit and intra-district splits on the applicability of § 3E1.1(b). The Third, Fifth, and Sixth Circuits have upheld the denial of a reduction under § 3E1.1(b) where the defendant filed a motion to suppress.[3] The First, Second, Ninth, Tenth, and D.C. Circuit have expressly held otherwise.[4]Additionally, the First, Third, Seventh, and Eighth Circuits have all held that the government may withhold moving for the one-point reduction under § 3E1.1(b) based on sentencing challenges, whereas the Second and Fifth Circuits have held to the contrary.[5]

In an effort to resolve these conflicts, the Sentencing Commission has added additional language to § 3E1.1(b) in an effort to minimize the deterrent effect on a defendant’s ability to exercise their constitutional rights. The following language has been added to the Guidelines:

The term “preparing for trial” means substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial. “Preparing for trial” is ordinarily indicated by actions taken close to trial, such as preparing witnesses for trial, in limine motions, proposed voir dire questions and jury instructions, and witness and exhibit lists. Preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered “preparing for trial” under this subsection. Post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered “preparing for trial.”

IV. Career Offender Enhancement and Inchoate Offenses

The Guidelines provide for an increased punishment for federal defendants who are deemed “career offenders” under U.S.S.G. § 4B1.1. The career offender enhancement applies where (1) the defendant is at least 18 years old at the time they committed the instant offense, (2) the instant offense is a felony that is a “crime of violence” or “controlled substance offense;” and (3) the defendant had at least two prior felony convictions that are considered either a crime of violence or controlled substance offense. U.S.S.G. § 4B1.1(a).

In previous versions of the Guidelines Manual, the definition of both a “controlled substance offense” was:

[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that 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, or dispense.

U.S.S.G. § 4B1.2(b) (2021). But the commentary to the above Guideline further defined both a “crime of violence” and a “controlled substance offense” to include “the offenses of aiding and abetting, conspiring, and attempting to commit such offenses.” U.S.S.G. § 4B1.2, cmt. app. n.1. These types of offenses are known as inchoate offenses.

While the majority of circuits held that the commentary under § 4B1.2 was binding, meaning inchoate offenses qualify for career offender purposes, the Third, Fourth, Sixth, Eleventh, and D.C. Circuit have held that the commentary is not binding and the definition of a “controlled substance offense” does not include inchoate offenses.[6] To address this conflict, the Commission amended § 4B1.2 to move the commentary’s inclusion of inchoate offenses into the actual text of the Guidelines. Section 4B1.2 now includes a subsection (d) which specifically incorporates inchoate offenses into the definition for both a crime of violence and controlled substance offense. U.S.S.G. § 4B1.2(d) (2023).

The inclusion of inchoate offenses into the actual text of § 4B1.2 effectively negates the circuit courts’ opinions that prior felony convictions for inchoate crimes do not count for career offender purposes for anyone sentenced under the 2023 Guidelines Manual. As discussed below, a similar issue regarding the binding nature of the Guidelines’ commentary has arisen involving U.S.S.G. § 2B1.1 (actual loss vs. intended loss). While this was not addressed in the 2023 Guidelines, it has been proposed for the 2024 amendment cycle, as discussed in another post.

[1] United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. McCoy, 981 F.3d 271 (4th Cir. 2020); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022); United States v. McGee, 992 F.3d 1035 (10th Cir. 2021).

[2] United States v. Andrews, 12 F.4th 255 (3d Cir. 2021); United States v. McMaryion, 64 F.4th 257 (5th Cir. 2023); United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en banc); United States v. King, 40 F.4th 594 (7th Cir. 2022); United States v. Crandall, 25 F.4th 582 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022).

[3] United States v. Longoria, 958 F.3d 372 (5th Cir. 2020); United States v. Collins, 683 F.3d 697 (2012); United States v. Drennon, 516 F.3d 160 (3d Cir. 2008).

[4] United States v. Vargas, 961 F.3d 566 (2d Cir. 2020); United States v. Price, 409 F.3d 436 (D.C. Cir. 2005); United States v. Marquez, 337 F.3d 1203 (10th Cir. 2003); United States v. Marroquin, 136 F.3d 220 (1st Cir. 1998); United States v. Kimple, 27 F.3d 1409 (9th Cir. 1994).

[5] Compare United States v. Adair, 38 F.4th 341 (3d Cir. 2022), United States v. Jordan, 877 F.3d 391 (8th Cir. 2017), United States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009), and United States v. Beatty, 538 F.3d 8 (1st Cir. 2008), with United States v. Castillo, 779 F.3d 318 (5th Cir. 2015), and United States v. Lee, 653 F.3d 170 (2d Cir. 2011).

[6] 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).

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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