Guest Blog Post by Zachary Newland of Newland Legal
On December 14, 2023, the U.S. Sentencing Commission published its proposed amendments for the 2024 amendment cycle. These amendments are subject to public comment through February 22, 2024. A public hearing on the amendments will be held in Washing, D.C., and the Commission will vote on whether to adopt the amendments sometime in April or May 2024.
Below is a brief overview of the 2024 proposed amendments.
I. Rule for Calculating Loss
Some circuits have previously held that the commentary to the career offender Guidelines was not binding, such as commentary including inchoate crimes to the definitions of “controlled substance offense” under career offender Guidelines. Applying this holding, the Third Circuit recently held that the commentary under Note 3(A) to U.S.S.G. § 2B1.1 which defines “loss” as either the “greater of actual loss or intended loss” is not binding as well. The Third Circuit held that because the term “loss” unambiguously means actual loss in the text of the Guidelines, and because the commentary is not binding, courts must use the actual loss to determine a defendant’s offense level even if the intended loss is higher. United States v. Banks, 55 F.4th 246 (3d Cir. 2022).
The proposed 2024 amendment would work the same as with the 2023 career offender amendment. The Commission has proposed moving the commentary defining loss as the higher of actual or intended loss to the text of the Guidelines, effectively making the rule binding on courts that have held the Guidelines’ commentary is not binding.
In short, the Commission is trying to undo defendant-favorable rulings in the area of actual loss with this proposed amendment.
II. Youthful Individuals
The Sentencing Commission has proposed two amendments related to youthful offenders. Part A of the proposed amendment provides three options for how criminal history scores are calculated for offenses committed prior to the age of 18.
Option 1: This option would amend U.S.S.G. § 4A1.2(d)(2)(A) to exclude juvenile sentences from receiving 2 criminal history points and instead receive only 1 point.
Option 2: This option would amend § 4A1.2(d)(2) to exclude all juvenile sentences from being considered for criminal history scoring. But a court could still consider juvenile sentences for an upward departure.
Option 3: This option would amend § 4A1.2(d) in a manner similar to Option 2, but would also include changes to the commentary to §§ 2K1.3, 2K2.1, 2L1.2, and 4B1.2 to delete any references to convictions for convictions for individuals under the age of 18 being used to increase the offense level.
Part B of this amendment would amend U.S.S.G. § 5H1.1 to add language specifically providing for a downward departure based on the defendant’s youth at the time of the offense.
III. Acquitted Conduct
Perhaps the most significant proposed amendment is related to whether a court can consider acquitted conduct when imposing a sentence. As the Guidelines stand, acquitted conduct has been counted under “relevant conduct” defined in U.S.S.G. § 1B1.3. The Commission proposed three options for this amendment.
Option 1: Amend § 1B1.3 to add a new subsection (c) providing that acquitted conduct is not relevant conduct.
Options 2: Add an application note to § 1B1.3 stating that a downward departure may be warranted if acquitted conduct has a disproportionate impact on the sentencing guidelines range.
Option 3: Amend § 6A1.3 to address the standard of proof required when applying sentencing factors and instruct that acquitted conduct should not be considered unless it is established by clear and convincing evidence.
IV. Circuit Conflicts
This proposed amendment has two parts, each which deal with firearms offenses under U.S.S.G. §§ 2K2.1 and 2K2.4. Part A would amend § 2K2.1 to address a circuit conflict over whether a serial number must be illegible for a four-level enhancement under § 2K2.1(b)(4)(B)(i) to apply. Part B would amend the commentary to § 2K2.4 to address the conflict over whether 18 U.S.C. § 922(g) with a drug trafficking conviction where the defendant also has a separate § 924(c) conviction.
V. Zero Point Offender Amendment
In what the Sentencing Commission has called a “technical amendment,” it has proposed amending U.S.S.G. § 4C1.1 (2023) to clarify current subsection (a)(10). Under this subsection as amended by the 2023 Guidelines, a defendant may be eligible for a two-level reduction if they meet the ten criteria set forth under § 4C1.1(a). Subsection (a)(10) provides that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” U.S.S.G. § 4C1.1(a)(10).
The proposed amendment would clarify that a defendant must meet both these criteria to be eligible by removing the CCE requirement to a new subsection (a)(11):
(10) the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role); and
(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
As the Guidelines are currently written, subsection (a)(10) will likely be a point of contention in litigating § 3582(c)(2) motions. However, this proposed amendment makes clear that the Commission’s intent was for a defendant to meet both prongs of (a)(10) to be eligible for a reduction under Amendment 821.