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USSC Proposes Refinements on ‘Career Offender’ – Update for January 30, 2026

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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 FLOATS PROBATION, CAREER OFFENDER PROPOSALS

In a rare second round of proposals for amending the federal Sentencing Guidelines, the US Sentencing Commission today published three sets of options to perhaps add to the proposed amendments that will be sent to Congress on or before May 1st.

These proposals are in addition to several issued last month, and – if adopted – represent a substantial change toward judicial flexibility as well as a commonsense approach to what some think has become a tendency to label far too many defendants as “career offenders,” a designation that has a major inflationary effect on sentencing ranges.

Today’s proposals focus on substantially expanding the sentencing ranges that should be eligible for probation, home confinement, and “spilt sentences” (half in  prison, half on home confinement).  Currently, a defendant who has a sentencing range that starts at more than 12 months is presumptively doing it all in prison. More than six months takes probation off the table. The Commission proposes to dramatically increase the sentencing ranges for which judges may consider probation and split sentences, with the probation zone expanding to up to the 87-108 month stratum for people with no prior criminal history (and more modest expansions for those having criminal history).

More significant are proposed changes in the Guidelines that govern whether someone is considered a “career offender.” The Sentencing Reform Act of 1984 directs the Commission to ensure that “career offenders” receive sentences near the statutory maximum. The Commission’s definition of what constitutes a career offender, however, has caught many defendants in the net whose criminal histories do not suggest “career criminal” by any stretch of the imagination.

Under the current Guidelines, two minor state burglaries 14 years ago for which Donny Defendant served 60 days – with a spotless record since – would nevertheless qualify Donny as a career offender if he got convicted of buying a pound of pot to divide up and sell to friends.  His Guideline sentencing range – 8 to 14 months – would shoot up to 210-262 months because of those 14-year old state burglaries.

The long-awaited change in the “career offender” guidelines would abandon the current “categorical approach” to what prior convictions were crimes of violence or drug offenses, substituting instead a list of federal and state crimes that apply. Burglary would no longer apply, felonies of any kind for which the defendant served less than 90 days would not apply, and defendants would have a chance to show that some crimes of violence should not count because their conduct was completely nonviolent.

There are many options contained in the USSC’s latest proposal.  For instance, the Commission asks people to comment on whether the cutoff for not counting minor felonies should be a sentence of 30, 60 or 90 days.  The proposal also includes changes to address conflicts among federal circuits on aspects of the Guidelines and changes to

As with most USSC proposals, the document is lengthy, 56 pages of explanation and granular strikeouts and additions, as well as modifications to the human trafficking Guidelines “to provide enhanced penalties that better reflect the harms of certain human smuggling offenses.”

The proposals are out for public comment until March 18, 2026,

US Sentencing Commission, Public Hearing (January 30, 2026)

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 30, 2026)

~ Thomas L. Root

Sentencing Commission Finally Tackles Meth Guidelines – Update for December 16, 2025

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SENTENCING COMMISSION PROPOSES LONG-AWAITED METH GUIDELINES AMENDMENT

There was a time when the US Sentencing Commission held a work meeting in January during which it would sort through ideas for the coming November’s amendments, adopting some options for public comment. After a few months of written comments and public sessions, the USSC would roll out the proposed amendments just in time for its May 1 deadline to get the package to Congress.

Under USSC Chairman Carlton W. Reeves, a US District Judge from the Southern District of Mississippi, the schedule seems to have been accelerated. That’s not a bad thing. But at the same time, the meetings these days seem much shorter and bereft of any meaningful discussion. I’ve seen speed dating encounters last longer.

Last Friday, in a 25-minute session, the Commission adopted for public comment a 194-page proposal to amend guidelines in nine areas. For prisoners, the most important of these to prisoners would be the options to change the methamphetamine guidelines. One proposal (Option 1) is to simply eliminate the Guidelines distinction among a meth mixture, meth (actual), and high-purity ice. All meth would be scored the same.

An alternative option (Option 2) would be to keep the distinctions in the current meth Guidelines but offer reductions for people who had minor roles, who qualified for the 18 USC § 3553(f) safety valve, or who were involved only because of family relationships or duress.

For theft and economic crimes, the Commission wants public comment on a proposal to raise the loss tables (which drive the offense level) by an average of 40%, both to simplify application and to adjust for inflation (which was done last 11 years and a lot of price hikes ago – up about 31% since 2016, according to one cost-of-living calculator).

In a separate proposal, the USSC seeks comment on a proposal to “simplify” the USSG § 2B1.1 loss table by reducing it from 16 levels to 7, with jumps of 4 points for each level. Additionally, the Commission suggests a new § 2B1.1 enhancement to reflect noneconomic harm to victims, such as physical, psychological harm, emotional, and reputational damage, or invasion of privacy.

More interesting is a USSC request for comment on redefinition of the “sophisticated means” enhancement. Currently, “sophisticated means” is widely applied by courts to virtually any economic offense more complex than stealing a Salvation Army kettle. The Commission seeks to return the “sophisticated means” enhancement to what was originally intended, “committing or concealing an offense with a greater level of complexity than typical for an offense of that nature” and provide further guidance for courts to use when determining whether conduct fits the definition.

Finally, the USSC has suggested a post-offense rehabilitation adjustment when a defendant shows pre-sentencing positive behavior or rehabilitation, such as voluntary efforts at rehabilitation or attempts to make things right with the victims.

No one already sentenced should get hopes up yet. None of the proposals has been suggested to be retroactive. That decision usually only comes after the proposed amendments are adopted in April. The Commission has a pending study on how to decide retroactivity, and a number of proposals for retroactivity of specific changes are bottled up awaiting the results of the retroactivity policy review.

Public comment closes February 10, 2026. Comments may be submitted through the USSC portal or in writing to U.S. Sentencing Commission, One Columbus Circle, NE, Suite 2-500, Washington, DC 20002-8002, Attn: Public Affairs – Proposed Amendments.

USSC Public Meeting (December 12, 2025)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (December 12, 2025)

~ Thomas  L. Root

USSC To Propose 2026 Guidelines Amendments Next Week – Update for December 5, 2025

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SENTENCING COMMISSION SETS DECEMBER MEETING ON 2026 AMENDMENTS

The United States Sentencing Commission announced last Monday that it would hold a public meeting on Friday, December 12, 2025, at which it is likely to vote to publish some proposed guideline amendments.

Policy priorities – which may or may not be reflected in proposed amendments – include revisiting the penalty structure in the USSG § 2D1.1 drug guidelines, including issues of methamphetamine purity. They also suggest the possible restructuring the § 2B1.1 theft/fraud guidelines “to ensure the guidelines appropriately reflect the culpability of the individual and the harm to the victim, including (A) reassessing the role of actual loss, intended loss, and gain; (B) considering whether the loss table in § 2B1.1 should be revised to simplify application or to adjust for inflation,” as well as role in the offense and victim impact.

US Sentencing Commission, Public Meeting set for December 12, 2025 (November 24, 2025)

US Sentencing Commission, Final Priorities for Amendment Cycle (90 FR 39263, August 14, 2025)

~ Thomas L. Root

Some Helpful Guidelines Amendment Guidance – Update for September 25, 2025

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GUIDELINES ‘EXPLAINER’

Lebedin Kofman, a New York criminal law firm has published an online explanation of the Guidelines amendments that will take effect in less than 40 days. These changes – as we have repeated often – are not retroactive to anyone already in prison.

Still, knowing what those changes are may benefit people seeking compassionate release, other 18 USC § 3582(c) sentence reductions, or other resentencings.  Here are some highlights:

Departures: The most dramatic change eliminates the departure system that’s been in place for 37 years. LK says, “This isn’t just moving the furniture around; it’s tearing down the walls and rebuilding the house.”

There will still be departures for substantial assistance (USSG § 5K1.1) and early disposition programs (for aliens agreeing to quick deportation). However, the Guidelines system now will depend on calculating the base offense level and any adjustments, and then considering variances up or down under 18 USC § 3553(a), including the nature and circumstances of the offense and the defendant’s  history and characteristics. LK notes, “This requires more individualized presentations of mitigation evidence, which can actually work in your favor if your attorney knows how to leverage it properly.”

Drug offenses: For drug offenses, the amended Guidelines will focus on a defendant’s actual role in the offense rather than just the drug quantities involved. The Guidelines will now cap the drug quantity table at offense level 32 for defendants who receive mitigating role reductions under USSG § 3B1.2.

What’s more, new Guidelines commentary clarifies that § 3B1.2(a) minor reductions are “generally warranted” for defendants whose primary function was among the lowest levels of drug trafficking, including couriers, errand runners, message takers, lookouts, and defendants performing other low-level functions, such as distributing user-level quantities for little compensation or being motivated by intimate relationships or fear rather than profit.

LK said, “This is a game-changer for many defendants who previously got hammered with sentences based on drug quantities they had no real control over.”

Lebedin Kofmin, Federal Sentencing Reform: Major Changes Every Defendant Should Understand (September 10, 2025)

~ Thomas L. Root

‘Starting at the Beginning’ For Criminal History – Update for September 23, 2025

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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.

COMMENCEMENT TIME

Usually, commencement happens in the spring. But in calculating Criminal History under the Guidelines, the time since prior convictions occurred is calculated from the “commencement of the instant offense.”

Sometimes, that’s easy. A defendant who pulled a “smash and grab” at a jewelry store and is convicted of a Hobbs Act robbery knows the date and hour his crime “commenced.” But many, if not most, cases are not so cut-and-dried.

Xavier Josey did time for a North Carolina child sex case. Afterward, he was required to register in whatever state he lived as a sex offender. He moved from North Carolina to New York, where he did not properly register. Later, he moved to Pennsylvania, where he failed to register again.

The Feds charged him with nonregistration in Pennsylvania. In scoring his criminal history,  to determine his Guidelines sentence, the District Court looked back 15 years from the date he should have registered in New York, which happened four years before he failed to register in Pennsylvania. The District Court concluded that “commencement of the instant offense” meant commencement of any relevant conduct as defined by USSG § 1B1.3 rather than commencement of the conduct that underlay the count of conviction. It’s like the Hobbs Act defendant having “commencement” of his robbery turned back to the time he took a kid’s French fries at McDonald’s ten years before.

The effect of Xavier’s court setting “commencement of the instant offense” as being a few years before his current crime was that his criminal history included three prior sentences that would otherwise have been excluded. His Guidelines sentencing range became 24 to 30 months instead of 15 to 21 months.

Last week, the 3rd Circuit vacated the sentence.

In calculating a defendant’s Criminal History Category, the Guidelines assign points for each prior sentence of imprisonment, but only if it was imposed within a specified period of time looking back from “the defendant’s commencement of the instant offense.” For prior sentences exceeding one year and one month the “look-back period” is fifteen years, and for any other prior sentence, it is ten years. But what conduct “commence[s]… the instant offense” to anchor the look-back period?

The Guidelines, however, say it is the conduct comprising the offense of conviction. The Sentencing Commission, however, included commentary to USSG § 4A1.2 instructing that “commencement of the instant offense” includes “relevant conduct.” USSG § 4A1.2 cmt. n.8. Guideline § 1B1.3 says that “relevant conduct” includes “all acts and omissions… that were part of the same course of conduct.” And § 1B1.3’s commentary, in turn, describes “same course of conduct” in terms that potentially sweep in a wide range of similar activity.

The 3rd held that “courts may consider commentary only when the text of a particular Guideline is genuinely ambiguous… and here there is no such ambiguity: ‘Commencement of the instant offense’ means the start of the conduct comprising the offense of conviction, i.e., the specific offense conduct for which the defendant is then being sentenced.”

How the commencement date of the instant offense in drug and white-collar conspiracy cases gets figured often has a significant effect on a defendant’s criminal history score. The Circuit has reminded defendants that the commencement date cannot be rolled back on a whim.

United States v. Josey, Case No. 24-1891, 2025 U.S. App. LEXIS 24290 (3d Cir. September 19, 2025)

~ Thomas L. Root

A Little Something for Halloween – Update for October 31, 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.

TRICK OR TREAT

Trick – Tomorrow is November 1st, and you know what happens then…

Nothing.

nothinghere190906I get emails all the time asking me about new laws supposedly becoming effective on November 1. One hopeful prisoner wrote last week, asking me to send him all the changes in 18 USC § 924(c) taking effect tomorrow.

I was tempted to send a blank email back to him, but I have written so often about the myth of November 1st. If he hadn’t gotten it by now, a blank email would just have him blaming the Bureau of Prisons’ clunky email system for stripping the message of hope out of my response.

So, one more time: Nothing happens tomorrow, except that last May’s announced Guideline amendments become effective. None of those changes are retroactive, so nothing in the changes will benefit people who have already been sentenced.
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Treat – The Dept of Justice and other law enforcement agencies on Monday morning raided (“conducted a sweep,” The New York Times said) of MDC Brooklyn.

IG230518The DOJ Office of the Inspector General led the operation, which included DEA and FBI agents.  Donald Murphy, a spokesman for the Bureau of Prisons, said in a statement that “the operation was preplanned and there is no active threat” at the prison, where around 1,200 people are held, including Sean Combs, known as Diddy, and Sam Bankman-Fried.

Murphy said the BOP had been involved in the planning. He said the action was “designed to achieve our shared goal of maintaining a safe environment for both our employees and the incarcerated individuals housed at MDC Brooklyn.”

MDC Brooklyn has the dubious distinction of being so bad that judges have conditioned prison terms on defendants not being designated to the facility.

The New York Times, U.S. Officials Sweep Troubled Brooklyn Prison Where 2 Were Killed  (October 28. 2024)

Associated Press, Authorities launch ‘interagency operation’ at federal jail in New York housing Sean ‘Diddy’ Combs (October 28, 2024)

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Trick – In 2022, 18 USC § 2243(c) passed, making it illegal for someone acting as a federal law enforcement officer to knowingly engage in a sexual act with someone in federal custody. A Government Accountability Office report last week told Congress that no one has been charged or convicted since the law passed.

The Report somewhat hopefully chalked up the nonuse of the new statute to several anodyne factors:

First, individuals cannot be charged for prohibited conduct that occurred prior to the provision’s effective date of October 1, 2022. Second, it can take several years from the time of an alleged incident to the filing of a criminal case to a disposition of the criminal case. Finally, according to an official from DOJ’s Office on Violence Against Women, many victims do not report sexual abuse immediately due to a variety of factors, including fear of retaliation.

What a relief! I thought for a minute there might be a deliberate failure to root out violations.

GAO 25-107684, Federal Law Enforcement: Criminal Sexual Acts while Serving in Official Capacity (October 21, 2024)
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Treat – In August 2019, Tamir Abdullah, a defendant serving a federal crack cocaine sentence, moved for a sentence reduction under Section 404 of the First Step Act (the retroactive Fair Sentencing Act). The district court denied the motion a swift 4-1/2 years later.

delayed200115Last week, the 6th Circuit upheld the denial but spared no words in its condemnation of U.S. District Court Judge John Adams (N.D. Ohio), a judge who is so bad that the 6th Circuit once ordered him to undergo a mental health examination:

Although we grant district courts broad discretion in managing their own dockets, we look unfavorably upon lengthy, unjustified, and inexplicable delays on the part of district courts in deciding cases… We see no reason in the record to justifiably explain why the district court took 1,625 days to resolve a straightforward sentence-reduction motion… Nor was the order finally issued by the district court adequate. That gravely flawed order failed to analyze Abdullah’s sentence-reduction motion under the multi-step test… and instead ruled on an argument—entitlement to compassionate release due to the COVID-19 pandemic—that Abdullah’s motion plainly did not advance.

The criticism is reminiscent of similar complaints about U.S. District Judge Timothy Black (S.D. Ohio) last winter.  It cannot be said too often that a sentence reduction motion that sits undecided is sometimes worse than no remedy at all.

United States v. Abdullah, Case No 24-3093, 2024 U.S. App. LEXIS 26639 (6th Cir. Oct 22, 2024)
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– Thomas L. Root

Neither More Nor Less Compassion, Sentencing Commission Reports – Update for October 24, 2024

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COMPASSIONATE RELEASE GRANT RATES HOLD STEADY

The U.S. Sentencing Commission’s Fiscal Year 2024 preliminary data on compassionate release motions filed pursuant to 18 USC § 3582(c)(1)(A), released last week, show that for the fiscal year ending September 30, 2024, the national rate for grants of such motions (out of a total of 2,901 ruled on) was 16.1%.

compassion160208This number represents an improvement over FY 2023 (13.8% of 3,140) and a very slight improvement over the cumulative average of the 15.9% grant rate since the First Step Act – which gave prisoners the right to file their own motions instead of limiting such filings to the whims of the Federal Bureau of Prisons – became law in December 2018.

Significant numbers of compassionate release motions only began to be filed when COVID-19 struck in late March 2020. Grant rates started out at 35% in April 2020, but fell to a 16.9% average by the end of that year.

The latest data show that in FY 2024, drug offenders got 55% of the compassionate release grants, followed by robbery offenders (14 %). People with Criminal History VI  – the most serious criminal history category – received 37% of the grants, followed by those with the best criminal histories, Criminal History I, with 23%.

funwithnumbers170511The Commission also reported that of 12,366 USSG Amendment 821 Part A movants – seeking a lower sentence because they previously had a higher Criminal History Category for being on probation, parole or supervised release when they committed their current offense (“status-point” offenders) – 35.9% have been granted. Of the 9,649 USSG Amendment 821 Part B movants seeking a lower sentence because they had absolutely no prior criminal offenses (zero criminal history points), 30.9 pct have been granted.

For status-point offenders, 44.9% had drug charges and 24.7% had firearms offenses. For zero-point movants, 78.6% are doing time for drugs, with fraud offenses in second place at 10.2%.

USSC, Compassionate Release Data Report (Preliminary FY 2024 Cumulative Data) (October 17, 2024)

USSC, Part A of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

USSC, Part B of the 2023 Criminal History Amendment Retroactivity Data Report (October 17, 2024)

– Thomas L. Root

Some Short Stuff – Update for August 2, 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.

Today, some short reports for easy beach reading…

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SUMMERTIME SHORTS

retro160110Sentencing Commission Retroactivity Decision, Priorities For Next Year Set For Aug 8: At a scheduled Aug 8 meeting, the US Sentencing Commission will decide whether four proposed Guidelines changes to become effective in November will be retroactive.

The four changes for which retroactivity is on the table are

• the acquitted conduct amendment;

• a change to § 2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in § 2K2.4 to permit grouping of an 18 USC § 922(g) gun count with a 21 USC § 841 drug trafficking count where the defendant has a separate 18 USC § 924(c) gun conviction based on drug trafficking.

• a change in § 2D1.1(a) to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that are not necessarily consistent with 21 USC  § 841(b)(1)(A) or (B).

The Commission will also adopt priorities for the coming year.

US Sentencing Commission, Public Meeting, Thursday, August 8, 2024

‘Dirty Dick’s’ Woes Continue: A superseding indictment handed up last week accused former Bureau of Prisons correctional officer Darrell Wayne “Dirty Dick” Smith of sexually abusing more inmates at FCI Dublin.

Last Thursday, a federal grand jury charged Smith with 15 counts of sexual abuse, including a civil rights violation, against five women in their cells and a laundry facility between 2016 and 2021.. Smith, known to detainees as “Dirty Dick,” had previously been indicted of sexually abusing three female inmates.

He is accused by inmates of actively roaming the prison, seeking out victims, and locking women in their cells until they exposed themselves to him.

L.A. Times, Guard at ‘rape club’ prison faces new charges of sexually abusing inmates (July 26, 2024)

DOJ Sides With Prisoners In SCOTUS First Step Case: The Supreme Court has had to appoint private lawyers to argue the other side of a pending case, Hewett v. United States, asking whether the First Step Act requires a resentencing to apply changes in mandatory minimums favorable to defendants.

goodlawyer240802The Dept of Justice has told the high court that “the government agrees that the best reading of Section 403(b) is that Section 403’s amended statutory penalties apply at any sentencing that takes place after the Act’s effective date, including a resentencing.”

In cases where the government agrees with the petitioner, the Supreme Court appoints a lawyer to argue the other side so that the Court’ decision is based on a thorough examination of the issue. In Erlinger v. United States, decided last month, DOJ agreed with the petitioners that juries should decide whether Armed Career Criminal Act predicate crimes occurred on separate occasions, requiring SCOTUS to appoint counsel to argue against the petitioner. The Court appointed a private attorney to argue the side abandoned by the government.

For Hewitt, the Court appointed Michael H. McGinley, Global Co-chair of the Securities and Complex Litigation practice group for mega law firm Dechert LLP, to argue that First Step does not let defendants benefit from more liberal sentencing terms if their original sentence was imposed before the law passed.

Supreme Court, Order (July 26, 2024)


hardtime240801‘Hard’ Federal Time Converts Another One: Peter Navarro, who completed a 4-month federal sentence for contempt of Congress two weeks ago just in time to be whisked to Milwaukee to address the Republican National Convention, said last week that federal law imposes harsher sentences than necessary for drug offenses.

“The standard that we want to have when we think about the criminal justice system, which I’ve been inside of now and I understand this better, there are bad people doing bad things, but there’s good people doing bad things as well,” Navarro said in a TV interview.

Navarro said that the longer people are in prison, the higher the chance that they will commit more crimes because they have “fewer skills” and “get more angry.”

The Trump advisor also said the costs of housing inmates costs about $60,000 a year per inmate, but that placing people on house arrest or in halfway homes reduces the costs by roughly half.

Just the News, Navarro urges U.S. to be ‘smart’ on crime, not ‘soft’ on crime following prison sentence (July 23, 2024)

– Thomas L. Root

Sentencing Commission Announces Slate of Fall Amendments – Update for April 22, 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.

SENTENCING COMMISSION TAKES A WHACK AT ACQUITTED CONDUCT

The US Sentencing Commission last week adopted a slate of proposed amendments to the Guidelines, finally addressing the acquitted conduct issue that has bedeviled the Commission and Supreme Court for the past two years.

can230407SCOTUS sidestepped the question last year, sitting on 13 certiorari petitions raising the question of whether sentencing for acquitted conduct – that is, conduct for which a defendant has been found not guilty by a jury – is constitutional. At the prodding of the Dept of Justice – which told the Supremes that they should let the Sentencing Commission handle it only to then tell the Sentencing Commission it lacked the power to do so – SCOTUS finally denied the cert petitions last July, with several justices saying they would wait for the Sentencing Commission to address the issue.

The acquitted conduct Guidelines amendment will redefine “relevant conduct” under USSG § 1B1.3 to exclude conduct for which a defendant was acquitted in federal court. Because judges must rely on “relevant conduct” to set the Guidelines sentencing range, the change is significant.

For example, if a defendant is convicted of distributing cocaine but acquitted of selling heroin, the amount of heroin that the government said he had sold currently be factored into his Guidelines range as long as the judge found it more likely than not that he had actually sold it. The proposed amendment would prohibit counting the heroin regardless of whether the judge thought the defendant had done it or not.

“Not guilty means not guilty,” Sentencing Commission Chairman Judge Carlton W. Reeves, who sits on the Southern District of Mississippi bench, said. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

reeves230706Commissioners were divided on whether to consider enforcing the acquitted conduct sentencing amendment retroactively. A majority voted to have the USSC staff prepare a retroactivity impact analysis, which is the initial step toward making an amendment retroactive.

Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, said in a press release, applauded the Commission’s vote, noting that it came after he and Sen Charles Grassley (R-IA) introduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. The legislation would have prohibited judges from using conduct acquitted by a jury. The measure has not gained consideration the full Senate.

The Commission is allowed to grant retroactivity – which lets people already sentenced according to Guidelines that are now being amended go back to court to secure the benefit of the amendment in the form of a reduced sentence – on new defendant-friendly amendments. Ratroactivity on last fall’s criminal history amendments was vigorously opposed by some commissioners and the DOJ, which has an ex officio representative on the Commission. This time around, the Commission is considering whether to make multiple defendant-friendly changes retroactive:

• the acquitted conduct amendment;

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

• a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in §2K2.4 to permit grouping of 922(g) gun count with drug trafficking count where the defendant has a separate 18 USC 924(c) conviction based on drug trafficking.

During the retroactivity vote, Commissioner Claire Murray – a former Trump administration DOJ official – made the obvious point that judges may also still rely on acquitted conduct at sentencing when considering the § 3553(a) sentencing factors, including the nature and circumstances of the offense and the history and characteristics of the defendant, which courts must consider at sentencing, regardless of the Guidelines advisory sentencing range.

The bad news in the amendments was pretty much expected. For economic crimes, the recommended sentence under the guidelines increases dramatically as the amount of loss resulting from the offense increases.

shakeitoff240423As it is now written, the loss is defined in the Guidelines commentary as the higher of actual loss or intended loss. If you try to steal the Hope Diamond from the Smithsonian (value $250 million) but only get a rhinestone imitation (value $250) because the real one had been rented out to Taylor Swift for the weekend, the Smithsonian’s actual loss would be just a few bucks, but the intended loss would be a quarter billion.

In 2022, the 3rd Circuit held in United States v. Banks that the Commentary expanded the definition of loss beyond the ordinary meaning of “actual loss,” and thus, “intended loss” could not be used to set a defendant’s Guidelines. The new loss amendment moves the commentary section into the actual guideline, making sure that intended loss is included in setting the Guideline sentencing range and allowing the use of gain from the offense as a substitute for loss.

Whether the changes will become retroactive depends in part on USSC data on how many prisoners would be eligible for a reduction. If the number is too high, the Commission becomes concerned that the courts will be overwhelmed with reduction motions.

Finally, unhappy that the Commission last year adopted a new compassionate release guideline and made the criminal history guidelines retroactive on a 4-3 vote, Sen John Kennedy (R-LA) last week introduced the Consensus in Sentencing Act to require that changes to the Guidelines get at least five votes out of the seven Commissioners.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said it “cannot be pure coincidence” that Kennedy introduced the bill the day before last week’s USSC meeting. The bill stands little chance of passing before Congress expires at the end of the year.

Reuters, US panel prohibits judges from sentencing for ‘acquitted conduct’ (April 17, 2024)

Law360, Sentencing Commission Limits Acquitted Conduct Sentencing (April 17, 2024) 

Press release, Durbin Applauds Sentencing Commission’s Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines (April 18, 2024)

Sentencing Law and Policy, Senator Kennedy introduces “Consensus in Sentencing Act” to increase USSC votes needed for guideline amendments (April 16, 2024)

– Thomas L. Root

A Year Later, Banks May Have Started What Chevron Could Finish – Update for November 10, 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.

FRAUD STORM BREWING OVER 3RD CIRCUIT BANKS RULING?

A defense attorney calls it “really a potential sea change in federal sentencing,” Bloomberg Law reported last week.

Fraud170406A year ago, the 3rd Circuit held in United States v. Banks that the loss enhancement under USSG § 2B1.1(b)(1) – the linchpin of economic crimes sentencing – is limited to actual loss. Relying on the 2019 Supreme Court Kisor v. Wilkie decision, the 3rd applied the ordinary meaning of “loss” to determine that § 2B1.1 includes only what was lost because the word “intended” is only mentioned in the § 2B1.1 commentary. The Circuit held that “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Bloomberg reported that the ruling has sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines, including the loss scale that can dramatically increase the sentencing range in fraud crimes. The Guideline suggests in the commentary using the greater of actual or intended loss when determining sentences. But the 3rd said the USSC lacked authority to expand the meaning of “loss” to include what was intended but did not happen.

“We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” one defense attorney told Bloomberg.

loss210312Bloomberg said Banks “could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations… It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.”

But in the year since Banks was decided, defense attorneys have had limited success using the decision outside of the 3rd Circuit. In December, an Eastern District of _ichigan court in United States v. McKinney sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan Chase. The judge reasoned that she didn’t have to defer to the Sentencing Commission because the definition of loss isn’t “genuinely ambiguous.” Later, the 6th Circuit cast some shade on relying on Banks in United States v. Xiaorong You, holding in a trade secrets theft case that “Banks’s attempt to impose a one-size-fits-all definition is not persuasive” and that the Guidelines commentary is entitled to deference.

Two other circuits, the 1st and 4th Circuits, have declined to take a position. In United States v. Limbaugh, the 4th declined to apply F.R.Crim.P. 52(b) “plain error” to an “intended loss” sentence, holding that the Banks holding “is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits that would allow us to label as “plain” any error committed here.” The 1st Circuit did the same in United States v. Gadson.

The issue is tied up with a 1993 SCOTUS ruling in Stinson v. United States that held Guidelines commentary is authoritative unless it violates the Constitution, violates a federal statute, or is inconsistent with, or a plainly erroneous reading of, the applicable Guideline. The 4th, 6th, 9th, and 11th Circuits all agree with the 3rd’s position that the Supreme Court in Kisor v. Willkie replaced Stinson’s highly deferential standard — to guideline commentary, at least — with a less deferential one.

conspiracy160606However, some other circuit courts have taken the opposite view. The 5th Circuit is the latest, ruling in the en banc United States v. Vargas decision that while the Guidelines are silent on the treatment of conspiracies, its commentary includes them and thus subjects a defendant to increased prison time. In deferring to the commentary, the 5th held that it is bound to follow Stinson, “like night follows day.” Under Stinson, the court went on to explain, the commentary is authoritative unless it is inconsistent with, or a plainly erroneous reading of, the applicable guideline.

Some commentators believe the Supreme Court will need to decide the issue. While SCOTUS has not taken up the issue, it will address Chevron deference this term, and the outcome of that could presage, if not settle, the Banks issue.

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir, Nov 30, 2022)

United States v. McKinney, 645 F. Supp. 3d 709 (E.D. Mich. 2022)

United States v. Xiaorong You, 74 F.4th 378 (6th Cir. 2023)

United States v. Limbaugh, No. 21-4449, 2023 U.S. App. LEXIS 317 (4th Cir., Jan. 6, 2023)

United States v. Gadson, 77 F.4th 16 (1st Cir. 2023)

Kisor v. Wilkie, 588 U.S. —, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019)

Stinson v. United States, 508 U.S. 36 (1993)

United States v. Vargas, 77 F.3d 673 (5th Cir. 2023) (en banc)

Federalist Society, How Much Should Courts Defer to U.S. Sentencing Guidelines Commentary? (August 9, 2023)

– Thomas L. Root