The United States Sentencing Commission voted this afternoon to reduce the base offense levels for nonviolent drug offenses (§ 2D1.1(c)) by two levels.   The amendment would reduce the advisory guidelines range for sentences for drug traffickers by an average of 11 months.

The vote was unanimous, but that doesn’t necessarily mean that the Commission will decide to make the change retroactive.  Chief U.S. District Judge Patti B. Saris, the Chair of the Commission, cautioned that no one should assume retroactivity is a slam dunk:

Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.

Retroactivity would affect a very large number of Federal inmates.  Previously, the Commission has declined to make changes retroactive because of the burden retroactivity would place on the court system.   Recall the change in criminal history “recency” points, back in 2010, which was not made retroactive in large part because up to 100,000 inmates would have flooded the system with § 3582(c) motions to reduce sentence.

Not to be a wet blanket, but we think that retroactivity for this change is far from certain.