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

RETROACTIVITY – WHAT HAPPENS NOW?

Last Friday, I reported on the United States Sentencing Commission’s  August 24 action making two of its Guidelines amendments from last April retroactive. Today, I have asked Mr. Explainer to tell people just how prisoners can go about applying for a shorter sentence.

Over 85,000 Federal Bureau of Prisons inmates have either had status points applied in their Guidelines sentencing calculations or had no criminal history points to begin with.  However, the Sentencing Commission estimated in its May 2023 Impact Analysis that only about 11,500 prisoners will be eligible for a lower sentencing range due to the status-point change and about 7,250 prisoners will be eligible for a lower sentencing range based upon the “zero-point” change.

Who Should File: The Dept of Justice complained to the Commission that regardless of who is eligible for a reduced sentence, most zero-point offenders or those with status points are likely to move for a reduction anyway. This would flood the courts, critics complained (many of whom have predicted 17 of the last three times changes in the law or Guidelines did so).

Still, history suggests that if you aren’t eligible, you should save a stamp. Motions that are dead on arrival only gum up the works for people who have meritorious issues and are already waiting too long for a judicial response.

Are you eligible? First, figure out whether applying zero-point or status-point to your Guidelines would change your sentencing range. This is important: If after you adjust your Guidelines for zero-point or status-point, your sentence is within or below your adjusted sentencing range, you are ineligible. Period. Do not pass “go.”

Example: Mike Methdealer had zero points and was a Crim I. His Guideline sentencing range was 135-168, but his judge gave him a break, sentencing him to 120 months, his mandatory minimum. Applying zero-point, his Guidelines fall to 108-135, but he still has a 120-month mandatory minimum. Mike is not eligible.

Example: Rick Recidivist had six criminal history points, putting him at the top of Category III. Two of those were status points. Take those away, and he would have four points, putting him at the bottom of Crim Category III. Rick, too, is not eligible.

Even worse, Rick was sentenced as a Guidelines career offender. Definitely not eligible.

Example: Sammy Snitch had a guideline sentencing range of 188-235 months. But he rolled on his co-defendants, and the judge gave him a four-level 5K1.1 departure to 121 months. Applying his status-point reduction would drop his range to 168-210 months. Special rules apply to people with 5K1.1 sentences, and he would be eligible to have his 121 month reduced proportionately.

Things are especially tough for zero-point men and women, who must meet all of the conditions listed in new USSC § 4C1.1: (1) no USSG § 3A1.4 terrorism adjustment; (2) no violence or threats of violence; (3) no one got hurt; (4) no sex offense; (5) the defendant did not personally cause “substantial financial hardship” (defined in Application Note 4(F) of the Commentary to USSG § 2B1.1); (6) no gun involved in the offense; (7) the offense did not involve individual rights under USSG § 2H1.1; (8) no USSG §3A1.1 adjustment for a hate crime or vulnerable victim or  USSG §3A1.5 for serious human rights offense; and (9) no adjustment under USSG  §3B1.1 for role in the offense and offense was not a 21 USC § 848 continuing criminal enterprise.

When to File: You can file for the reduction as early as November 1, 2023. However, no court is allowed to let the reduction become effective before February 1, 2024.

How to file: The filing you are making is under 18 USC 3582(c)(2) and USSG 1B1.10. There are two components to your showing. One, you have to prove that you are eligible. Two, you have to convince the judge that you are worthy of the reduction.

A judge has almost complete discretion to grant you the reduction up to the bottom of your adjusted range. You have to sell yourself – especially your post-sentence record – to the court.

Who to Hire: No one can answer this for you. You could prepare and file a motion yourself.  You could hire a lawyer or a writing service, remember that in the past (such as the drugs-minus-two in 2014 and Section 404 crack motions after the First Step Act), many district courts appointed the Federal Public Defender to represent eligible prisoners. Be sure you’re not eligible to get it for free from the FPD before you spend good commissary money on a mouthpiece.

What Not to Do:  Speaking of people willing to take your money, the BOP last week issued a media advisory that a phone scam is going around where callers are identifying themselves as BOP employees to ask you to pay money to secure release to pre-release custody for your loved ones. Presumably, the BOP now takes Apple iTunes cards and Googleplay as well as postal money orders.

You can say a lot of things about the BOP, but it does not call people to demand their personal information or money. For now, you cannot buy $10,000 ankle monitors or use prepaid gift cards to buy people’s way out of BOP custody.

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

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

Law360, Sentencing Commission Backs Retroactive Cuts For 1st Timers (August 25, 2023)

Forbes, Bureau of Prisons Warns of Scams (August 25, 2023)

– Thomas L. Root