Sentencing

Last week, the BOP’s new director, Colette Peters, issued new guidance regarding how the BOP calculates and administers earned time credits under the First Step Act, which inmates can accumulate and use to reduce their sentences by enrolling in rehabilitative programing offered by the BOP. Under Director Peters’ new guidance, inmates will be able to see how many earned time credits in total they will be able to earn while serving their sentence. As a result, they will have an estimated release date based on their potential earned time credits. Inmates will also be able to continue accumulating credits while in protective custody, administrative detention, or quarantine. Additionally, the 18-month cut-off for earning credits has been eliminated.

The BOP has recently been criticized for interpreting the First Step Act narrowly and denying earned time credits to many inmates who sought to have their sentences reduced.

In particular, the BOP had been using an “interim calculation policy” since January 2022 that allowed eligible inmates to accumulate time credits up to 365 days (1 year) “or 18 months from their release date, whichever happens first.” In other words, inmates serving shorter sentences were unable to maximize the amount of time their sentences could be reduced. A district judge in the Southern District of New York recently struck down this rule, holding that this 18-month cut-off date was not consistent with or authorized by the Final Rule published in the Federal Register.

Boasting a full quorum for the first time in years, the U.S. Sentencing Commission recently met and voted on its most pressing priorities for 2022. At the top of the list is implementing the First Step Act, specifically the guidelines governing motions for sentence reductions under 18 U.S.C. 3582(c)(1)(A), also known as “compassionate release.” The deadline to submit guidelines amendments to Congress is May 1, 2023. The Commission has published its other reform priorities, which include amendments to the drug trafficking guidelines (including the safety valve), the firearm offense guidelines, the career offender guidelines, the criminal history guidelines, whether guidelines commentary can be binding, and whether acquitted conduct can be considered in calculating a defendant’s guidelines or imposing a sentence.

In late September, several U.S. senators from both parties introduced legislation seeking to create more oversight and transparency from the Bureau of Prisons, which has recently made headlines for corruption scandals, staffing crises, and its poor management of the COVID-19 pandemic. The Federal Prison Oversight Act, if passed during the upcoming “lame duck” session, would require the DOJ to appoint an ombudsman to respond to complaints from inmates regarding conditions at BOP facilities and other grievances. It would also require the DOJ’s inspector general to review and evaluate conditions at the BOP’s 122 facilities.

Last month, the U.S. Sentencing Commission published a new report titled “The Organizational Sentencing Guidelines: Thirty Years of Innovation and Influence,” summarizing hte history and development of Chapter 8 of the U.S. Guidelines, which apply to defendant-corporations and other defendant-entities.

The First Circuit vacated the sentence of a former police officer convicted of RICO conspiracy. The Court held that the district court erred in considering the PSR’s mere mentioning of the defendant’s prior administrative complaints, without more to substantiate them, as a basis for an upwards variance from the Guidelines.

The Sixth Circuit vacated a defendant’s sentence that had been enhanced under 21 USC 841(b)(1)(A)(viii) based on his prior convictions. The Court held that the defendant’s meth conviction under Kentucky state law was not a “serious drug offense” or “serious drug felony” since his statute of conviction encompassed more than manufacturing conduct.

Last week, the U.S. Sentencing Commission published a new study on defendants sentenced on federal robbery charges in 2021. The report provides a comprehensive look at the demographics and other characteristics of robbery offenders, as well as well as their ranges of prior criminal history and the types of sentences imposed. Notably, the report also identifies characteristics of the robbery offense itself such as the identity of the victim, the type of property taken, whether violence was used or threatened, whether a weapon was involved, and whether the victim was injured or killed.

Joining seven other circuits, the Second Circuit held that Hobbs Act robbery is not a “crime of violence” under the Guidelines for Career Offender, USSG 4B1.2(a), because the offense can be applied to conduct involving only violence against property, not against other people. The Court also upheld the district court’s finding that Application Note 1 to 4B1.2, which states that conspiracy to commit a crime of violence is a “crime of violence,” was not binding because the note is inconsistent with the text of 4B1.2 itself, which does not include conspiracy as one of the predicate offenses for career offender.

For the first time since 2019, the U.S. Sentencing Commission will have a quorum of members and the ability to promulgate new guidelines and regulations for federal sentencing. The Commission’s newest members were approved by the U.S. Senate by voice vote on August 4, 2022. Click here to read our previous coverage of the newest appointees to the Commission.