Tag Archives: 4C1.1

“And” Really Does Mean “Or” – Update for April 30, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

CLARITY 1, DEFENDANTS 0

When I reported last week on the Sentencing Commission’s amendment proposals for 2024, I failed to mention its proposed change to the new USSG § 4C1.1, the criminal history guideline for the zero-point reduction.

virgin171201Under § 4C1.1, someone with no criminal history points is still Criminal History Category I but gets a 2-level reduction in his or her offense category. The Guideline has a list of conditions: no guns, no sex crime, no violence, and more. Condition 4C1.1(a)(10) requires that “the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.”

If you stayed awake in high school English, you will read this as excluding people from the beneficial reduction if they both got a § 3B1.1 aggravating role and were convicted of an 848 continuing criminal enterprise (shorthand for a drug-based racketeering enterprise). That universe would be populated by a pretty small number of people.

The government naturally has argued to courts that the condition doesn’t mean that at all.  Instead, the government says “and” really means “or.”  That is, if you got a 2-level, 3-level or 4-level enhancement for being either a leader or an organizer or a supervisor or a manager of the criminal activity–the so-called aggravating role adjustment–you could not benefit from the zero-point reduction. Likewise, if you were convicted of a § 848 continuing criminal enterprise–regardless of how you might have been scored for a § 3B1.1 leadership enhancement–you were disqualified.

vanishingpt240430The district courts have largely agreed with the government. We should hardly be surprised. About 18,700 people were sentenced for federal drug offenses in Fiscal Year 2023, but a vanishingly few of those (seven defendants) were convicted under the drug kingpin statute (21 USC § 848).  About 6.3% of the 18,700 sentenced prisoners received a § 3B1.1 aggravating role adjustment (just under 1,200 defendants).   As you can imagine, the intersection of the 1,200 people who got aggravating role adjustments and the seven with § 848 convictions amounts to no more than a rounding error.

What’s more, the Supreme Court just interpreted an “‘and’ means ‘or'” case a month ago, and concluded that in the 18 USC 3553(f) drug “safety valve,” similar stilted language to that employed in Condition 4C1.1(a)(10) should be read so that “and” really is disjunctive, meaning “or.”  See Pulsifer v. United States.

Admitting that the current 4C1.1 condition 10 has created “confusion,” the USSC has now proposed breaking condition 10 into two conditions, so it will read:

(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 USC 848.

and-or240319Like the other proposed amendments, this change is intended to be effective in November.

I apologize for not mentioning this last week. I was too hasty and inattentive.  In this case,  my “and” probably means “or.”

USSC, Amendments to the Sentencing Guidelines (Preliminary) (April 17, 2024)

USSC, FY 2023 Sourcebook of Federal Sentencing Statistics

Pulsifer v. United States, 144 S.Ct. 718, 218 L,Ed,2d 77, 2024 U.S. LEXIS 1215 (March 15, 2024)

– Thomas L. Root

What To Know In Applying For Criminal History Sentence Reduction – Update for October 31, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root

SCOTUS Hears Argument Over Meaning of “And” in First Step Act – Update for October 2, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES OPEN NEW COURT YEAR TODAY WITH ENGLISH LESSON

The Supreme Court opens its new 9-month term today with arguments in a case that considers what the meaning of the word “and” is in a provision of the First Step Act, an esoteric English lesson with real-world impact for thousands of federal prisoners.

meaningofisis231003Not since Bill Clinton told questioners that “it depends on what the meaning of ‘is’ is” has a simple word prompted such a dispute. What the justices decide could affect thousands of federal drug sentences each year. What’s more, it could affect thousands more seeking a retroactive zero-point reduction under the Guidelines.

First Step amended the 18 USC § 3553(f) “safety valve” that allows certain nonviolent drug offenders who plead guilty to avoid mandatory minimum sentences based in large part on their lack of significant criminal history. The statute says may qualify if he or she doesn’t have more than 4 criminal history points, a prior 3-point offense and a prior two-point violent offense.

The issue is whether having (1) more than four criminal history points, OR (2) a prior three-point offense OR (3) a prior two-point violent offense, will disqualify you, or whether you have to have (1) more than four criminal history points, AND (2) a prior three-point offense AND (3) a prior two-point violent offense – that is, all three to be disqualified. The courts of appeal are split, and thus, the Supreme Court has stepped in to settle the dispute.

confused230113The case, Pulsifer v. United States, is more than an exercise in sentence diagramming, a dubious talent I mastered and then forgot more than a half-century ago. Nearly 6,000 people convicted of drug trafficking in 2021 alone might be eligible for reduced sentences, according to the Sentencing Commission, if the Supremes agree that a defendant has to have all three to be disqualified. Ohio State University law professor Doug Berman told AP that more than 10,000 people sentenced since First Step took effect could be affected. He said Congress wrote the § 3553(f)(1) subsection in the negative so that a judge can exercise discretion in sentencing if a defendant “does not have” three sorts of criminal history.

In today’s Supreme Court case, Petitioner Mark Pulsifer argues that he has to have four criminal history points which include both a prior 3-point offense and a 2-point violent offense in order to lose the benefit of the safety valve. The government says just one of the three conditions – 4 points or a 3-point prior or a 2-point violent crime – is enough.

Berman told AP the language of the statute favors a broad reading favoring defendants. “But the concern about the broad reading is that it basically covers everybody. I think it’s right that that wasn’t Congress’ intent,” Berman said, echoing arguments made by judges who sided with prosecutors.

AP observes that Congressional intent may not matter: “On a court in which several justices across the ideological spectrum say they are guided by the words Congress chooses, with less regard for congressional intent, that might be enough to favor defendants.”

ambiguity221128How to read an ambiguous “and” may be important to a lot of zero-point people pretty soon. The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Sec 4C1.1(a)(1) directs that an eligible defendant is one who “did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 USC § 848.” Does this mean that no one with a § 3B1.1 enhancement or who was convicted of an 848 continuing criminal enterprise is eligible? Or does it mean that you must have both an 848 conviction and a 3B1.1 enhancement to be disqualified?

That all depends on the meaning of “and.”

Pulsifer v United States, Case No. 21-1609 (Supreme Court, Oral Argument October 2, 2023)

Forbes, Why Thousands Of Prisoners Could Be Spared Because Of A Supreme Court Case Over The Word ‘And’ (September 25, 2023)

AP News, The Supreme Court will hear a case with a lot of ‘buts’ & ‘ifs’ over the meaning of ‘and’ (September 24, 2023)

– Thomas L. Root

Supremes Are Back From the Beach, Guideline Amendments Lurch Toward Effective Date – Update for September 26, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

PREVIEW OF COMING EVENTS

events230926With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.

Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.

vacationSCOTUS180924Meanwhile, the Supreme Court returns to work after a 3-month vacation for its annual “long conference.” At today’s long conference, the Justices will decide which of some 950 petitions for writ of certiorari – about 15% of all petitions filed during the year – should be granted review.

“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, at the long conference, the rate is roughly half of that, about 0.6%.

Zero Point Offender

The Hill, All eyes on ethics as Supreme Court justices return to Washington (September 26, 2023)

The New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– Thomas L. Root

Criminal History Guidelines Going Retro By Narrowest of Margins – Update for August 25, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SENTENCING COMMISSION CLIFFHANGER SENDS CRIMINAL HISTORY CHANGES RETROACTIVE

reeves230706Sentencing Commission meetings – and admittedly, we don’t have many in our sample, because the USSC was moribund for the five years ending last August – are usually yawners. Chairman Carlton Reeves likes to talk and loves polite consensus. No one on the Commission is a bomb-thrower, and every the most vigorous policy disputes are cloaked in courtesy. Everyone – even the ex officio Dept of Justice member Jonathan J. Wroblewski – gets a turn at the mic.

That’s partly why yesterday’s meeting was so surprising.

The Commission approved the first retroactive application of a Guideline change in nine years, deciding that Amendment 821 – which lowers criminal history scores in some cases – should apply to people already sentenced. It also adopted policy priorities for the 2024 amendment cycle that include maybe amending how the guidelines treat acquitted conduct and assessing whether Bureau of Prisons practices are effective in meeting the purposes of sentencing.

Zero is Hero:  Right now, someone with zero or one criminal history point (a minor misdemeanor) is scored a Criminal History Category I. This rating provides the lowest sentencing range for any given Guidelines offense level. The Commission has adopted a new ”zero-point” Guidelines amendment, which added Section 4C1.1 to the Guidelines. The new section will grant people with zero criminal history points who meet a long list of other conditions (such as no guns or violence, no sex offenses) a 2-level reduction in their Guidelines offense level. The practical effect will be that the person’s advisory sentencing range will drop two levels (such as from Level 30 (97-121 months) to Level 28 (78-97 months).

Status Seekers: At the other end of criminal history, the Guidelines have always assigned an extra two points if the current offense was committed while someone was under supervision. Supervision could be probation or parole from a prior offense or supervised release from a prior federal offense. The two points (called “status points”) could be a snare for the unwary. A defendant involved in a conspiracy of several years duration might pick up a DUI offense during the period the conspiracy is going on. Even if the local judge lets him or her off with unsupervised probation, that local conviction would add 2 criminal history points and quite likely land the defendant in a higher criminal history category.

nostatus230825Last April, the Sentencing Commission abolished all status points for people who had fewer than seven accumulated criminal history points driving their criminal history category. For those with seven or more points, only one status point would be added rather than two. In making this change, the USSC determined that status points had little to no relevance in the accurate determination of a criminal history profile.

As it must do whenever it lowers the Guidelines, the Commission last May opened a proceeding to determine whether those changes should benefit people who have already been sentenced as well as those who have yet to be sentenced. This retroactivity proceeding ended with yesterday’s meeting.

Chairman Reeves opened the meeting with a full-throated endorsement of making the criminal history amendments retroactive. Commissioners Luis Restrepo (Judge on the 3rd Circuit Court of Appeals) and Laura Mate (Federal Public Defender) followed him, voicing their support for full retroactivity.

I yawned. It hardly mattered at this point that the Commission’s audio feed was garbled, because retroactivity was up 3-0, and it seemed that victory was a foregone conclusion. A done deal.

But then, Commissioner Claire Murray (a former Assistant Attorney General) delivered an ordered and rational argument against retroactivity, followed by complementary arguments against going retro by Commissioners Candice Wong (US Attorney’s Office for DC) and Claria Horn Boom (US District Judge from both districts of Kentucky). Suddenly, the vote was 3-3, and retroactivity was tottering.

It thus fell to Commissioner John Gleeson (Wall Street lawyer and former federal judge) to decide whether 18,000 or so federal prisoners would be eligible to have their sentences adjusted to what USSC doctrine now believed was appropriate. Judge Gleeson did not disappoint.

gleesonB160314Speaking in quiet, measured tones, Judge Gleeson observed that the opponents of retroactivity complained that the changes made by Amendment 821 “do not remedy a systemic wrong and thus could not rectify a fundamental unfairness in the guidelines manual,” and thus the need for finality and the administrative burden placed on courts by retroactivity meant that the changes should not be made retro. “In my view,” Judge Gleeson said, “it is hard to overstate how wrong that argument is.”

Judge Gleeson highlighted the disproportionate impact the two criminal history guidelines had had on minorities. He said that 43% of the prisoners affected by the retroactive change in status points are black and 20% are Hispanic. About 69% of those benefitting from the zero-point change are Hispanic. Judge Gleeson said that while

“there’s no such thing as fully remedying and racial disparity that’s been built into our criminal justice system for so long… making these amendments retroactive will have a tangible effect for people of color… Overreliance on criminal history can drive pernicious racial disparities in sentencing… we [have] visited fundamental unfairness on thousands of people through guidelines that judges follow… [that] we know from the data are wrong… At the receiving end of these sentences there are three-dimensional human beings.”

Final vote for retroactivity was 4-3.

retro160110The retroactivity order prohibits district courts from granting any change in sentences prior to February 1, 2024. The Commission voted that delay to ensure that people who might be released will have the opportunity to participate in reentry programs and transitional services that will increase the likelihood of successful reentry to society.

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

• 11,495 prisoners will have a lower sentencing range due to the status-point change, with a possible sentence reduction of 11.7%, on average.

• 7,272 prisoners will be eligible for a lower sentencing range based upon the “Zero-Point” change, with an average possible sentence reduction of 17.6%.

Eligible prisoners will have to file a motion with their sentencing courts under 18 USC § 3582(c)(2) seeking the reduction. The district court is entitled to grant no more than a reduction to the bottom of the revised sentencing range (with special rules for people who have had departures for assisting the government), and no issues may be considered other than the revised criminal history score. Whether to grant as much a reduction as possible, only part of the possible reduction, or none at all is entirely up to the judge.

US Sentencing Commission, Public Meeting (August 24, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

– Thomas L. Root

Vacation’s Over, Back to Work – LISA Update for July 31, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

OCCASIONALLY (BUT RARELY) I’M RIGHT

I am back from a week in the wilds with three wild grandchildren, a great vacation marred only by the LISA site crashing for five days. Did I remember to publicly thank LISA’s website provider for its alacrity in fixing the problem?

No, I did not forget to My omission was quite deliberate.

Now back to work: I have been predicting for weeks that the US Sentencing Commission will probably make the new Sentencing Guidelines §§4A1.1(e) and 4C1.1 retroactive sometime in August.

Amended §4A1.1(e) abolishes “status points” from Guidelines criminal history, while §4C1.1 reduces the Guidelines offense level for some people with zero criminal history points.

iamright230731Last Thursday, the USSC announced a public meeting will be held on August 24, and that the meeting will include as an agenda item a “possible vote on retroactivity of Parts A and B of the 2023 Criminal History Amendment.”

For the uninitiated, “Parts A and B of the 2023 Criminal History Amendment” are the zero-point and status-point changes we’re talking about.

If the vote is favorable, then people will likely be able to apply for 18 USC § 3582(c)(2)/USSG § 1B1.10 retroactivity at the end of February 2024.

Of course, Congress could veto the proposed amendment. However, half of the 6-month review period for the 2023 amendments has already passed, and Congress is on vacation until the week after Labor Day. With an appropriations bill deadline at the end of September and reams of unfinished business, the chance both the House and the Senate will veto any part of the 2023 Amendments before the November 1 effective date is remote.

The same is probably true for the 6-month review period on retroactivity.

US Sentencing Commission, Public Meeting – August 24, 2023 (July 27, 2023)

– Thomas L. Root

Mr. Explainer Here: All About Guidelines Retroactivity – Update for July 20, 2023

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MR. EXPLAINER TACKLES RETROACTIVE GUIDELINES

USSC160729The good news is that the U.S. Sentencing Commission is likely to approve a proposal that two Guidelines changes it adopted in April should be retroactive for people already sentenced.

The better news is that Congress seems too busy to try to gin up a veto of any of the provisions approved by the USSC and submitted to the legislators for review.

Today’s guest is Mr. Explainer, who is here to guide us through the fine print of getting retroactive application of the two changes:

• First, no one can file a motion for retroactive application of the two Guidelines changes until six months pass from the time the USSC sends the proposed retroactivity order to Congress. That means that all of the inmates doing a happy dance in anticipation of November 1, 2023, will have to wait at least until Punxatawny Phil sees his shadow.

• Second, the two changes have conditions attached:

(a) The zero-point change in the Guidelines (new USSG § 4C1.1) says that defendants are eligible for a 2-level reduction in their Total Offense Level (usually good for a two-sentencing range reduction) if they had zero criminal history points and meet all of the following conditions:

(1) had no adjustment under § 3A1.4 (Terrorism);

(2) did not use violence or credible threats of violence in connection with the offense;

(3) the offense did not result in death or serious bodily injury;

(4) the offense is not a sex offense;

(5) the defendant did not personally cause substantial financial hardship;

(6)  no gun was involved in connection with the offense;

(7) the offense did not involve individual rights under § 2H1.1;

(8) had no adjustment under § 3A1.1 for a hate crime or vulnerable victim or  § 3A1.5 for a serious human rights offense; and

(9) had no adjustment under § 3B1.1 for role in the offense and was not engaged in a 21 USC § 848 continuing criminal enterprise.

(b) The change in § 4A1.1(e) – the so-called status point enhancement – says only that one point is added if the defendant already has 7 or more criminal history points and “committed any part of the instant offense (i.e., any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

fineprint180308• The USSC staff has figured that about 11,500 BOP prisoners with status points would have a lower guideline range under a retroactive § 4A1.1(e). The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

• About 7,300 eligible prisoners with zero criminal history points would be eligible for a lower guideline range if the zero-point amendment becomes retroactive. The current average sentence of 85 months could fall to an average of 70 months.

• The reduction – done under 18 USC § 3582(c)(2) – is a two-step process described in USSC § 1B1.10.

(a) First, the court determines whether the prisoner is eligible. For a zero-point reduction, the court would have to find that the prisoner (1) had no criminal history points; (2) had none of the other enhancements in his case or guns or sex charges, or threats of violence or leader/organizer enhancements or any of the other factors listed in § 4C1.1. Then, the court would have to find that granting the two-level reduction would result in a sentencing range with a bottom number lower than his or her current sentence.

If your guidelines were 97-121 months, but the court varied downward to 78 months for any reason other than cooperation, you would not be eligible because reducing your points by two levels would put you in a 78-97 month range, and you are already at the bottom of that range. Special rules apply if you got a § 5K1.1 reduction for cooperation, but people sentenced under their sentencing ranges for reasons other than cooperation may not be eligible.

(b) To benefit from the status point reduction, the decrease in criminal history points is more problematic. If you have 4, 5, or 6 criminal history points, you are in Criminal History Category III. If two of those points are status points, they would disappear. Going from 5 points to 3 or 4 points to 2 would drop you into Criminal History Category II. If your prior sentencing range had been 70-87 months, your new range would be 68-78 months, and you would be eligible.

But if you had 6 criminal history points, you would only drop to 4 points, and you would still be in Criminal History Category III. No reduction in criminal history, no decrease in sentencing range, and thus no eligibility.

• Once you’re found to be eligible, your judge has just about total discretion whether to give you all of the reduction you’re entitled to, some of it, or none of it. You cannot get more than the bottom of your amended sentencing range, and the court cannot consider any other issues in your sentence than the retroactive adjustment.

usscretro230406Convincing the court that you should get the full benefit of your reduction is best done with letters of support from the community, a good discipline record and a history of successful programming. Showing the court that you have been rehabilitated to the point that the reduction has been earned is a good idea.

There’s a good reason that the retroactivity – if it is adopted – will end up benefitting no more than 12% of the BOP population. It is not easy to show eligibility and even tougher to prove that the court should use its discretion to give you the credit.

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

USSC, Sentencing Guidelines for United States Courts (May 3, 2023)

USSC § 1B1.10, Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)

– Thomas L. Root

USSC Retro Inquiry Gets a Boost – Update for May 26, 2023

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SENTENCING COMMISSION ANALYZES EFFECT OF CRIMINAL HISTORY RETROACTIVITY

retro160110When it adopted proposed Guidelines amendments last month, the Sentencing Commission asked whether two of them – the new USSG § 4C1.1 that would provide a 2-level reduction to people with non-violent non-sex offenses with zero criminal points and the abandonment of extra criminal history points (called “status points”) applied to people who were on probation, parole or supervised release when they committed their current offense (and thus should have really known better) – should be retroactive.

Any change in the Sentencing Guidelines does not benefit people who have been sentenced before the change was effective unless the Sentencing Commission – in a separate proceeding – determines that the change should be retroactive. If it does, those already sentenced may petition their sentencing judges to resentence them as though the new Guideline applied to their sentence.

It doesn’t happen often: the last retroactive Guidelines change that was declared to be retroactive was the 2014 across-the-board 2-level reduction in the drug quantity tables of USSG § 2D1.1. That change, to pick an illustration, reduced the offense level of someone who sold a kilo of cocaine from 26 to 24. If the defendant had no prior criminal convictions and no other aggravating factors (such as stupidly having a gun), his or her advisory sentencing range would have dropped a year, from 63 to 51 months).

manyaslip230526There are many a slip ‘twixt cup and lip, of course: the Guidelines reduction must have reduced the sentencing range: a veteran criminal with the top level of criminal history and an offense level of 39 might see her level fall to 37, but the advisory sentencing range would still start at 360 months. And if all of the eligibility hurdles are crossed, the sentencing judge may still decide the defendant’s a bad dude and decline any reduction. But still, for those who are eligible, a Guidelines reduction that goes retroactive provides hope.

Currently, the Commission is taking public comment on the wisdom of letting people benefit from retroactivity of the very wise changes proposed for criminal history scoring. That comment period ends June 23. After that, the USSC will decide whether to add the § 4C1.1 amendment to the retroactivity list. If it does, Congress will get 6 months to decide whether to veto it.

If retroactivity is adopted and gets past Congress, prisoners will be able to apply for a reduction under 18 USC § 3582(c)(2) and USSG § 1B1.10 (the statute and guideline, respectively, that govern the process).

Two issues that always arise are whether the retroactivity would create a flood of court filings that would gum up the federal courts, and exactly how many people might benefit. Last week, the USSC staff issued a study that gives the retroactive argument a boost.

releaseme211231The staff estimated that 11,500 BOP prisoners with status points would have a lower guideline range if the abandonment of status points becomes retroactive. The current average sentence for that group is 120 months and would probably fall by an average of 14 months.

The report also figures that about 7,300 eligible prisoners with zero criminal history points would have a lower guideline range if the zero-point Guidelines change becomes effective. The current average sentence of 85 months could fall to an average of 70 months.

Writing in his Sentencing Law and Policy blog, Ohio State University law professor Doug Berman said, “Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive. That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.”

USSC, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines’ criminal history rules (May 15, 2023)

– Thomas L. Root