For the first time in 3 years, the U.S. Sentencing Commission announced its proposed Amendments to the Sentencing Guidelines. The proposed changes are sweeping, touching on areas including Compassionate Release, Career Offender, Firearm Offenses, and more. Some of these amendments, such as provisions of the new Compassionate Release Guidelines, sharply divided in the Commission and passed on a partisan, 5-4 basis. We provide a brief look at some of the most noteworthy changes:
The headline grabber was the Commission’s changes to the USSG 1B1.13, which governs compassionate release/sentence reduction motions under 18 USC 3582(c)(1)(A). Reflecting the broad reading given to the statute, Chair Carlton W. Reeves issued a statement on behalf of the Commission describing “compassionate release” as a “misnomer” since the statute calls for sentence reductions, not just outright releases.
Under the proposed amendments to 1B1.13, courts can release an inmate or reduce their sentence based on new categories of “extraordinary and compelling reasons.” The old categories for medical incapacitation and spouse/children needs remain the same. These new categories apply to inmates living in facilities affected by disease outbreaks, inmates who have parents or other family members who need caregivers, inmates who have been assaulted while in custody, and, resolving a circuit split, inmates who have served over 10 years of an “unusually long sentence” based on subsequent changes in the law.
Rehabilitation, alone, still does not constitute an extraordinary and compelling reasons, but it may now be considered “in combination” with other reasons warranting release. The “catch-all” provisions allows for release or reduction if an inmate can show circumstances “similar in gravity” to the enumerated provisions.
Section for “Certain Zero-Point Offenders”
Under proposed USSG 4C1.1, a defendant would receive a 2-level decrease to their offense level if they don’t have any criminal history points, do not receive a terrorism enhancement, did not use violence or threats of violence, did not cause death or serious injury, did not commit a sex offense, did not cause any victim substantial financial hardship, did not possess or use a firearm or deadly weapon, did not violate a victim’s civil rights, did not commit a hate crime, and did not receive a role adjustment.
Under proposed USSG 5C1.1, a non-custodial sentence is “generally appropriate” for a Zero-Point Offender in Zone A or B of the Sentencing Table. For reference, the highest range for a Zero-Point offender in Zone B is 8-14 months imprisonment. For Zero-Point offenders outside of Zone A and B, however, subsection (b) to 5C1.1 suggests a downward departure, including to probation, for Zero-point offenders if the applicable Guidelines range “overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.”
Criminal History Scoring
The Commission proposed an amendment to USSG 4A1.1 where a defendant would receive 1 point if he or she 1) has 7 or more criminal history points and 2) committed the instant offense while under another sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.
USSG 4A1.3 is also to be amended to suggest a downward departure where a defendant has, for example, two minor misdemeanor convictions within 10 years prior to the instant offense but no intervening criminal behavior. The Guidelines would also recommend a downward departure for defendants who receive criminal history points for marijuana possession offenses.
Under proposed changes to USSG 4B1.2, the Guidelines would have an amended definition of “robbery” aimed at resolving ambiguity among the courts over what offenses count as “robbery.” Critically, the Guidelines will also be updated to include “inchoate offenses,” such as aiding and abetting and conspiracy, under the definitions of “crime of violence” and “controlled substance offense.”
Firearm Offenses under USSG 2K2.1
The proposed amendments include significant changes to 2K2.1. Among those changes are enhancements for transporting firearms to prohibited persons, engaging in a firearm offense in connection with a group of 5 or more persons for criminal purposes, and possessing a stolen firearm or firearm with an altered, obliterated, or absent/missing serial number. The proposed amendment includes a 2-level decrease for defendants who lack criminal history or were motivated by familial relationships or threats.
The safety valve under USSC 5C1.2, providing a 2-level decrease, will be updated to reflect the language of the amended statute under 18 USC 3553(f).
Fentanyl Guidelines under USSG 2D1.1
Subsection (b) of 2D1.1 would be amended to provide a two-level enhancement for defendants who represent or market fentanyl as another legitimately manufactured drug (such as oxycontin) with reason to believe it was not that legitimate drug. This is meant to apply to defendants who otherwise would not qualify for the four-level enhancement for defendants who knowingly misrepresent that they are selling fentanyl.
Acceptance of Responsibility
The Commission proposes amending USSG 3E1.1 to include a definition of “preparing for trial,” which excludes pretrial proceedings and motions as well as post-conviction matters.
Click here to read Judge Reeves’s statement.
Click here to read the proposed amendments.