On April 30, 2024, the United Stated Sentencing Commission delivered its annual amendments to the Federal Sentencing Guidelines to Congress. The Guidelines are used to calculate recommended sentencing ranges for defendants convicted of federal crimes based on the defendant’s conduct, the circumstances of their offense, their personal history and characteristics, and the need to make any victims whole, among other things. Since 2005, in United States v. Booker, the Guidelines have been considered advisory rather than mandatory, but judges must still calculate a defendant’s Guidelines correctly. And many judges, sometimes referred to as “Guidelines judges,” still defer to the Guidelines in most cases.
Annually, the Commission submits amendments to the Guidelines to Congress, who has 180 days to vote to alter or reject them. Absent any changes or objections from Congress, the amendments go into effect on November 1. Rejection is unlikely—Congress has only rejected two amendments since 1987.
Below is a summary of the most important amendments submitted to Congress this year, the reason why the guidelines were amended, and the likely result of the amendments on future sentencing.
I. ACQUITTED CONDUCT
The Supreme Court previously ruled in United States v. Watts that courts could sentence a defendant based on conduct they had been acquitted for at trial if a court found it to be “relevant conduct” by a preponderance of the evidence. Under the Commission’s proposed amendment to §1B1.3 and the Commentary to §6A1.3, “acquitted conduct” will be omitted from the scope of relevant conduct that can be considered in sentencing going forward, with the exception of conduct that helps to establish the defendant’s offense of conviction that the defendant either admitted to or which the judge or jury found beyond a reasonable doubt.
The amendment was promulgated in an attempt to make the Guidelines more fair, recognizing a common sense understanding that an it is unjust to punish a person for a crime of which they have been found not guilty. This amendment resolves a longstanding debate about the relevance of acquitted conduct and will hopefully pave the way for more unified and fair sentences in the future.
II. FOR CALCULATING LOSS
Prior to this amendment, the Commentary of §2B1.1 expanded the ways for calculating the loss amount for a defendant’s offense in white-collar and financial crimes (larceny, embezzlement, forgery, etc.). The “loss” that helped to determine the defendant’s possible sentence was the greater of “actual loss,” the reasonably foreseeable monetary loss that resulted from the crime, or “intended loss,” the monetary harm that the defendant purposely sought to cause, even if that harm would have been unlikely or impossible to accomplish.
Until the Supreme Court’s decision in Kisor v. Wilkie in 2019, the Commentary to the Guideline was considered authoritative and binding on courts. However, after Kisor, which held that an agency’s interpretation of a regulation is only authoritative if the term is “genuinely ambiguous,” the Commentary became much less powerful, especially where the Commentary expanded the scope of the underlying Guidelines provision.
In 2022, applying the Supreme Court’s holding in Kisor, the 3rd Circuit ruled that the term “loss” was not ambiguous, and thus the Commission’s Commentary on “intended loss” did not apply. United States v. Banks, 55 F.4th 246 (3d Cir. 2022). According to the 3rd Circuit, “loss” only referred to actual loss, not the often-greater intended loss.
In response, the amendment moves the listed methods for calculating loss from the “Commentary,” which represents the USSC’s interpretation of the Guideline, to the “Notes,” which are an authoritative part of the Guideline itself. It also moves the alternative loss calculation based on the defendant’s actual gain to the Notes.
If enacted, the amendment would maintain potentially heavier penalties for white-collar defendants, especially those whose actions caused little to no actual harm. Bank fraud cases, for example, often have intended losses that far exceed the actual loss sustained by the victim-banks. In those cases, the defendants would continue facing a much harsher sentence than their actual conduct reflects.
III. FIREARM GUIDELINES
The Commission proposed amendments to two firearms Guidelines sections that have been the focus of two circuit splits, addressing: 1) whether the serial number on a firearm must be completely illegible in order to apply a sentencing enhancement, and 2) whether a firearms count and a drug trafficking count can be grouped together when the defendant has also been convicted of a count under 18 U.S.C. § 924(c) (a separate charge for use of a firearm in relation to a crime of violence or a drug trafficking crime).
Regarding the first amendment, there was a debate over how the word “altered” should be interpreted under § 2K2.1(b)(4)(B), which provides for an enhancement where a defendant knowingly possessed a firearm with an “altered or obliterated serial number.” The 2nd, 6th and 7th Circuits created the “Naked Eye” test, where any serial number that is defaced, but still visible to the naked eye, is not “altered” under the Guidelines. The 4th, 5th, and 11th Circuits, on the other hand, held that a serial number made less legible, to any degree, is “altered.” The 11th Circuit reasoned that if “altered” must mean “completely destroyed or illegible,” then the term “obliterated” is rendered superfluous, which violates a well-known canon of construction[AC1] .
The proposed amendment to § 2K2.1(b)(4)(B) endorses the “Naked Eye” test by omitting the “altered or obliterated” language and substituting that the serial number must be modified to the point that it is “rendered illegible or unrecognizable to the unaided eye” for the sentencing enhancement to apply. This amendment, if enacted, would make sentencing enhancements for “altered” serial numbers on firearms that much harder to apply.
The amendment relating to grouping counts addresses the grouping of firearms charges and drug trafficking charges under the Guidelines in cases that also involve mandatory minimum sentences under 18 U.S.C. § 924(c[AC2] ). Specifically at issue is whether a defendant’s conviction for unlawfully possessing a firearm under § 922(g) can group with a drug trafficking count, as they usually do, when there is also a count of conviction under § 924(c).
Generally, drug and firearm counts are grouped together since the conduct underlying each count can be used to enhance the sentence for the other count. At the same time, if a defendant is being sentenced for drug counts and firearm counts, including a count under 924(c), no enhancements involving firearms are applicable to the underlying drug offense pursuant to the commentary under § 2K2.4. However, the 6th, 8th, and 11th Circuits have held that that firearm and drug trafficking charges can still be grouped together, regardless of whether there is also a charge under 924(c). The 7th Circuit, by contrast, has ruled that there is no basis for grouping the charges, and thus no basis for further enhancement.
The new amendment generally follows the holdings of the 6th, 8th, and 11th Circuits, providing that if two counts would group under §3D1.2, then the counts should group notwithstanding the non-applicability of certain enhancements under Note 4(A).
IV. YOUTHFUL INDIVIDUALS
The Commission’s amendment to §5H1.1, the policy statement concerning the effect of a defendant’s age on sentencing, adds explicit language providing for a downward departure from a defendant’s Guidelines’ range based on their youth. The added language addresses the consistent statistical findings that criminal behavior tends to decrease with age, and the scientific fact that human brains continue developing until a person’s mid-20’s.
The Policy Statement advocates for other forms of intervention and punishment more appropriate for the youth of the defendant. With the enactment of the amendment, we will hopefully see less youth in prisons and more constructive forms of punishment being considered.