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Opacity, Thy Name Is Sentencing Commission – Update for April 15, 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.

SENTENCING COMMISSION ADOPTS AMENDMENTS BUT DROPS METH GUIDELINE CHANGE

meth240618The bad news first: At last Friday’s U.S. Sentencing Commission meeting, the Commission did not vote on – in fact, did not even mention – the amendment it studied last summer and proposed in January to change the existing 2-level Guidelines enhancement for high methamphetamine purity levels. This means that there will be no change in the meth guidelines until November 2026 at the earliest (and maybe not even then).

What the Commission did do: The USSC is amending Guideline § 2D1.1 to cap the drug tables at Level 32 if the defendant had a mitigating role in the offense (that is, received a role reduction under USSG § 3B1.2 for a minor or minimal role). More critically, the Commission – concerned that courts have applied the § 3B1.2 role reduction too sparingly over the years – is adding commentary directing that a § 3B1.2(a) reduction is generally warranted

if the defendant’s primary function in the offense was plainly among the lowest level of drug trafficking functions, such as serving as a courier, running errands, sending or receiving phone calls or messages, or acting as a lookout… A § 3B1.2(b) reduction is generally warranted if the defendant’s primary function in the offense was performing another low-level trafficking function, such as distributing controlled substances in user-level quantities for little or no monetary compensation or with a primary motivation other than profit (such as being motivated by an intimate or family relationship, or by threats or fear to commit the offense).

This is a welcome change. Sentencing courts have been surprisingly stingy over the years in applying minor role reductions. The Commission is saying that the drug guidelines should focus more on role in the offense and less on drug quantity (a metric that prosecutors have found is easy to manipulate).

supervisedrelease180713The other significant change for the people already sentenced is to supervised release. The Commission is urging courts to apply supervised release where needed rather than reflexively, guidance which would dramatically reduce the number of defendants to whose cases it is added to the end of a sentence.

The supervised release change would adopt an individualized approach to decisions on early termination of supervised release, making getting off supervision after a year much easier for defendants. The proposed changes resolve the Circuit split on whether a releasee must show extraordinary reasons supporting termination, instead directing a court to perform an “individualized assessment of the need for ongoing supervision” and ending supervision if it determines that “termination is warranted by the conduct of the defendant and in the interest of justice.”

In determining a defendant’s criminal history, prior convictions are counted as different offenses even if sentenced at the same time if they were separated by an “intervening arrest.” The 3rd, 6th, 9th, and 11th Circuits have held that a citation or summons following a traffic stop does not qualify as an intervening arrest. In the 7th Circuit, however, if a defendant is arrested for selling crack on the street corner on Tuesday, makes bail Tuesday night, gets a speeding ticket on Wednesday, and is arrested again for selling crack on Thursday, those two arrests have added six criminal history points to the defendant’s Guidelines calculations for what in most other Circuits would be scored as a 3-point criminal history, essentially part of a continuing offense. The 7th says that a traffic stop is enough to trigger the “intervening arrest” standard.

The Commission has proposed an amendment holding that a traffic stop, followed by the issuance of a summons, is not an arrest for criminal history purposes.

Robber160229Under USSG § 2B3.1(b)(4)(B), an enhancement in a robbery sentence is called for if a victim is physically restrained. The Commission proposes amending the enhancement to provide that the psychological coercion of possessing a firearm alone is not enough. Instead, the increase will apply only where “any person’s freedom of movement was restricted through physical contact or confinement, such as being tied, bound, or locked up, to facilitate the commission of the offense or to facilitate escape.”

No decision was made on the retroactivity of any of the changes, but the Commission proposes study and comment on whether to make the drug minimal role, criminal history, and physical restraint amendments retroactive. That decision will be made this summer.

So what’s my beef about opacity? Jonathan Wroblewski described it well in an incisive Sentencing Matters Substack:

In this 40th anniversary year of the Sentencing Reform Act (SRA), and 20th anniversary year of the Supreme Court’s decision in Booker, the Commission said it would be reflecting on the core goals of the Sentencing Reform Act, the progress that has been made towards meeting them, and what actions might be taken now, and in the future, to further them. It sounded like a big deal… The published proposals made clear that the Commission was seriously considering making fundamental change to the guidelines system…

USSC250415With expectations high, last Friday, the Commission’s amendment year came to an end with a rather short and quite opaque public meeting, unbecoming given the importance of the issues at stake and the process leading up to it. There were votes on amendment proposals for sure, but almost no explanation from commissioners for the consequential choices they were making. It turned out to be quite a disappointment.

First, there was no discussion of the Commission’s thinking and how it arrived at its decisions. The Commission spent two and half days in deliberations behind closed doors, and then in a public meeting of less than a half hour, explained nothing of how those deliberations resulted in the actions taken and not taken. Judges, practitioners, Members of Congress, advocates, inmates, family members, and academics spent countless hours developing and submitting written comments to the Commission, and there was virtually no explanation of how those comments were considered. Second, the Commission in the end did not even address the categorical approach. No matter how many times the Commission places the issue on its priorities – and it has over and again for over a decade – it just can’t seem to find a fix. And again, no explanation.

Third, the Commission did not address the unwarranted disparities in methamphetamine sentencing identified by numerous commentors. This seemed especially perplexing given Judge Reeves’ own detailed decision in United States v. Robinson, holding that the methamphetamine purity enhancement had ceased to have any meaning. And again, no explanation. Fourth, the Commission made no fundamental reform to the drug guideline or to Step One of any other guideline. It did take steps to ensure that drug offenders who play a mitigating role are not over-punished. But the Commission has tried this before – numerous times, in fact – and it is far from clear that the steps taken will make a significant difference in drug sentencing policy.

I seldom quote at such length from another work, but Mr. Wroblewski’s Substack is worthy of it, and in fact is worthy of a full read by anyone affected by the Sentencing Commission’s work.

U.S. Sentencing Commission, Amendments to the Sentencing Guidelines (Preliminary) (April 11, 2025)

WHNT, U.S. Sentencing Commission approves revisions to federal sentencing guidelines (April 11, 2025)

Jonathan Wroblewski, Sentencing Matters Substack (April 14, 2025)

– Thomas L. Root

Unintended Consequences for a Meritorious Sentencing Commission Proposal – Update for February 21, 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.

THE NAVARRO CONUNDRUM

Sharp-eyed reader Drew wrote last week to ask about the United States Sentencing Commission’s proposal to change the supervised release guidelines.

supervisedleash181107Supervised release – a term of post-incarceration control over a former prisoner by the US Probation Office during which the ex-inmate can be sent back to prison for violations of a whole list of conditions – is imposed as a part of nearly every sentence, despite the fact that “it is required in fewer than half of federal cases,” according to one federal judge. No one subjected to it especially likes it, which is why many have cheered the Sentencing Commission’s proposal to reduce its usage.

The proposed amendment now being considered would amend USSG § 5D1.1 to remove the requirement that a court reflexively impose a term of supervised release whenever a sentence of imprisonment of more than one year is imposed, so a court would be required to impose supervised release only when required by statute. For cases in which the decision to impose supervised release is discretionary, the court would be directed to impose it “when warranted by an individualized assessment of the need for supervision,” which the court would be expected to explain on the record.

Who could possibly complain about avoiding a term of supervised release, a period of post-incarceration control that, by some accounts, violates one-third of the people subjected to it?

Remember Peter Navarro, once a confidante of first-term President Trump and currently his Senior Counselor for Trade and Manufacturing? Petey suffered hideously as a federal prisoner for four whole months at FCI Miami in between his last and current White House gigs, doing time after being convicted of contempt of Congress.

You’re wondering, of course, who could possibly hold Congress in contempt?  Besides almost all of America, that is? Well, Pete did by refusing to testify before the House January 6th Committee.  He was sentenced to four whole months of incarceration. Last summer, as his endless sentence drew to a close, Pete petitioned his sentencing court for compassionate release under 18 USC § 3582(c)(1)(A), asking not that his sentence be cut but instead that the court add a few days of supervised release.

It was subtraction by addition. Pete wanted a few days of supervised release added to his sentence because of a quirk in the First Step Act. Under the Act, FSA credits – time credits that are earned for successful completion of programming intended to reduce recidivism – can be used for early release or halfway house/home confinement benefits. The Bureau of Prisons credits the initial FSA credits a prisoner earns to decrease the length of his or her sentence by up to a year under 18 USC § 3624(g)(3), but only if the prisoner has had a term of supervised release imposed as part of his sentence.

magahat250221Generally, the supervised release condition has not been a problem for prisoners because courts hand out supervised release like red MAGA caps at a Trump rally. However, a few sentences don’t have supervised release added to the tag end, such as very short ones or cases where an alien will be deported at the end of his term.

That happened to Pete, whose court imposed a four-month prison sentence without any supervised release afterward. This left Pete unable to use any of the 14-odd days of FSA credit he had earned to go home a couple of weeks early.

Pete’s creative legal team filed for the sentence non-reduction under § 3582(c)(1)(A), asking that the sentence be modified to add a little supervised release after Mr. Navarro’s four months in hell ended. The court didn’t bite, holding that the sine qua non of a sentence reduction motion was a request for an actual sentence reduction. Pete had asked for a sentence increase, and that could not be granted.

As a result, Pete barely made it out of his personal Devil’s Island in time to be flown by private jet to the Republican Convention in Milwaukee. (Incidentally, he emerged from prison as a dedicated BOP reformer, but that commitment seems to have waned since he made it back to 1600 Pennsylvania Avenue NW).

The Navarro episode illustrated Drew’s question: If supervised release were to be no longer imposed for many offenses, would that not also hobble a prisoner’s ability to earn the up-to-one-year-off that § 3624(g)(3) offers? Darn right – just ask President Trump’s Special Counselor on Trade and Manufacturing. Is this the USSC sneakily trying to take benefits away from some prisoners? Might the result of the proposed amendment’s adoption be a repeat of year-and-a-day sentences where judges impose a day of supervised release in order to allow defendants the full benefit of their FSA credits?

I suspect the Commission simply has not focused on the effect that its proposal would have on prisoners using FSA credits for shorter sentences under 18 USC § 3624(g)(3). The arcane FSA credit regime is not a matter that’s necessarily in the Sentencing Commission’s wheelhouse. The USSC’s proposal to encourage more judicious imposition of supervised release terms is generally laudable: it conserves US Probation Office resources to be spent on people who really need the post-prison supervision while will improve – rather than limit – rehabilitation for many.

adultsupervision240711(Examples: I had a fellow on supervised release tell me last week that a major trucking firm had been happy to hire him as a long-haul trucker despite his 20 years served for a drug offense until it learned he was still on supervised release. The company told him it could not hire him as long as he was on a US Probation Office tether but to call them the second he was done with supervised release, whereupon they’d be glad to put him in one of their rigs. I had another guy tell me that he couldn’t get life insurance to protect his wife and kids until he was off supervised release. Neither of these limitations helps a former prisoner re-integrate.)

We’ll have to see whether USSC tweaks its proposal to account for the unforeseen Navarro consequence when the final amendment package is adopted in April.

United States Sentencing Commission, Guidelines for United States Courts, 90 FR 8968 (February 4, 2025)

United States v. Thomas, 346 FSupp3d 326 (EDNY 2018)

Order, United States v. Navarro, ECF 176, Case No 22-cr-0200 (DDC, May 15, 2024)

– Thomas L. Root

US District Court Rules Guideline 1B1.13(b)(6) Exceeds Commission Authority – Update for February 7, 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.

WHAT CONGRESS HAS ORDAINED, LET NO SENTENCING COMMISSION PUT ASUNDER

exceedsauthority250207Compassionate release took it on the chin again in the 11th Circuit this week, as a Southern District of Florida district court ruled yesterday in a lengthy opinion that the United States Sentencing Commission lacked the authority to rule that a nonretroactive change in the law could provide a basis to reduce the length of a grossly over-length sentence that was proper when imposed but would be improper under current law.

A little background: Under 18 USC § 3582(c)(1), a federal prisoner is entitled to ask the sentencing court to reduce his or her sentence. An inmate seeking such a reduction (commonly if imprecisely known as “compassionate release”) must show that “extraordinary and compelling” reasons exist for grant of the reduction. What constitutes an “extraordinary and compelling” reason is defined in the first instance by United States Sentencing Commission.

(The prisoner also must show that the reduction being sought takes into consideration (whatever that means) the sentencing factors of 18 USC § 3553(a), but we can discuss that issue another day).

When the Sentencing Commission adopted a new policy statement on sentence reduction motions 15 months ago, it provided a laundry list of circumstances that qualify in Guideline § 1B1.13(b). The most contentious item on the list is Item (b)(6), a provision that a “change in the law” can sometimes provide a basis for a reduction.

stash171031Gilberto Chineag was sentenced to life in prison after being ensnared in a “stash house sting” some 25 years ago. Two prior state drug convictions – which Gil possessed – were all that were required under 21 USC § 841(b)(1)(A) to require the court to lock Gil away for the rest of his natural life.

A quarter century later or so, Gil asked his court to reduce his sentence to time served, arguing that the First Step Act’s (FSA’s) change in § 841(b)(1)(A) left his sentence at 21 to 27 years instead of life and thus qualified under Guideline 1B1.13(b)(6) as an extraordinary and compelling reason for a sentence reduction. In a 40-page opinion issued yesterday, Judge Rodolfo Ruiz II disagreed, holding that the Sentencing Commission lacked the power to declare that a change in the law that Congress did not make retroactive could ever be an “extraordinary and compelling” reason under § 3582(c)(1)(A) for a sentence reduction.

While Congress never exactly denied the Sentencing Commission the right to rely on a change in the law as an “extraordinary and compelling” reason, it did say in the FSA that the amendments to § 841(b)(1)(A) “shall apply to any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment.” Judge Ruiz reasonably read this provision as excluding application to offenses like Gil’s that had been sentenced years before the FSA was adopted.

Judge Ruiz held adoption of 1B1.13(b)(6)

exceeds the scope of the Commission’s delegated authority in allowing courts to consider expressly nonretroactive changes in law, like section 401(a) of the FSA, as ‘extraordinary and compelling reasons’ for a sentence reduction… The Court does not doubt the well-intentioned policy rationale that led the Commission to promulgate this Policy Statement. And the Court recognizes the hard work undertaken by the Commission to cabin the terms of section 1B1.13(b)(6)… A court may consider a change in law only if (1) the defendant has served at least ten years of their sentence; (2) there would be a “gross disparity” between the sentence being served and the sentence likely to be imposed after the change in law came into effect; and (3) individualized circumstances demand it. This clearly evinces a good-faith effort on the Commission’s part to narrowly tailor the class of defendants who would be eligible for a sentence reduction. But a textual good policy cannot overcome clear text. If a statute, like section 401(a) of the First Step Act, is clearly nonretroactive, it cannot be rendered retroactive by simply adding the label “extraordinary and compelling.

finalityisexplained250207The court observed that “Congress did not vitiate prior law or cast doubt on the thousands of lawful, final sentences that had been previously established pursuant to § 841(b)(1)(A),” but rather only concluded that the policy underlying high mandatory minimum sentences in to § 841(b)(1)(A) should be reduced. “The Court presumes that Congress says what it means and means what it says,” Judge Ruiz wrote, “And if Congress explicitly chooses to make a statute nonretroactive, it would be truly abnormal and extraordinary—in every sense of the word—for a court to poke around that statute to find imaginary exceptions.”

This decision is only a district court opinion, not binding on any other court. But its detail and scholarship – as well as other court’s opinions as to the efficacy of Guideline 1B1.13(b)(6) – suggest that this issue will not be settled short of the Supreme Court.

Ohio State University law professor Doug Berman, writing yesterday in his Sentencing Law and Policy blog, questioned Judge Ruiz’s conclusion that Congress did not intend that the Commission let nonretroactive sentencing law changes sometimes trigger review of a harsh sentence. He wrote that “[i]t makes perfect sentence to me that Congress would conclude, when passing major sentencing reductions in the First Step Act, that it ought not give thousands of defendants an unlimited, complete, broad legal right to retroactive sentence reductions (which in many cases might require plenary resentencings), but still would want the expert sentencing agency to set the terms of possible case-by-case sentence reductions attentive to the significant statutory changes it had just enacted.”

United States v. Chineag, Case No. 1:01-cr-607 (S.D. Fla. February 6, 2025)

Sentencing Law and Policy, Notable lengthy new district court opinion rules US Sentencing Commission lacked authority to authorize sentence reduction based in part on “changes in law” (February 6, 2025)

– Thomas L. Root

Sentencing Commission Proposes Drug Table, Meth, Supervised Release Changes – Update for January 27, 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.

‘ICE’ MAY BE MELTING

In December, the United States Sentencing Commission announced proposed Sentencing Guidelines amendments for public comment on the sweeping if rather tedious topics of guideline simplification, criminal history, firearm offenses, circuit conflicts and retroactivity. 

drugdealer250127At the time, Sentencing Commission Chairman, Judge Carlton W. Reeves (Southern District of Mississippi) hinted that the USSC could be announcing some additional proposed amendments this month.

Last Friday, the Commission provided an upbeat end to a tough week for federal criminal justice, proposing defendant-friendly amendments to Guidelines on supervised release, the drug quantity tables, and enhanced offense levels for “ice” and pure methamphetamine.

The draft amendments, released for public comment, also propose cracking down on distribution of drugs laced with fentanyl as well as an increased enhancement for packing a machine gun during a drug crime.

The biggest surprise is a proposed change to adopt one of three options, any of which would reduce the top base offense level for drug quantity in the Guidelines. A Guidelines sentence for a drug offender is driven by the weight of the drugs attributed to him or her.  If Tom the Trafficker, with no prior convictions, was involved in a cocaine conspiracy that sold 1,000 lbs of cocaine (10 lbs. a week) over two years – even if he only sold an 8-ball a day five days a week for two years (about 4 lbs) – his Guidelines base offense level would be 38 with a sentencing range starting at 20 years in prison.

The three options the Sentencing Commission is considering would drop the levels in the drug quantity table to Level 30, 32 or 34 instead of the current 38.  At Level 30, our hypothetical Tom would be looking at an advisory sentencing range of 8 years instead of 20.

The Commission said it “has received comment over the years indicating that [Guideline] 2D1.1 overly relies on drug type and quantity as a measure of offense culpability and results in sentences greater than necessary to accomplish the purposes of sentencing.”

meth240618The second proposed amendment would essentially wipe out the drug quantity table’s 10-to-1 focus on meth purity and eliminate any enhanced penalty for crystal meth, known as “ice.” Commission data show that in the last 22 years, the offenses involving meth mixtures has remained steady while the number of offenses involving “meth (actual)” and “ice” have risen substantially. A recent Commission report found that today’s meth is “highly and uniformly pure, with an average purity of 93.2% and a median purity of 98.0%.”

In other words, if all meth is pure, applying the higher base offense level for pure meth becomes the norm rather than the exception. This is a drug-crime equivalent of the Lake Wobegon effect, humorist Garrison Keilor’s representation that in Lake Wobegon, all the children are above average.

The meth purity change could decrease Guideline base offense levels by up to 4.

A note: Judge Reeves, wearing his district court hat instead of USSC hat, wrote a thoughtful opinion two years ago in which he refused to apply the purity enhancement on the same grounds that the Commission cites now as a rationale for changing the Guidelines.

supervisedleash181107The other significant change is to supervised release, which would dramatically reduce the cases in which it is added to the end of a sentence. Among its many changes – focused on making supervised release more about rehabilitation and less about punishment – the proposed amendment would also adopt inmate-friendly standards for early termination of supervised release, making getting off supervised release after a year much easier to do.

The Sentencing Commission proposal says nothing about whether the drug quantity table reduction or meth changes – if they are adopted – would be retroactive. Retroactivity would be decided in a separate proceeding, and the USSC is in the middle of a painful re-evaluation of when and whether retroactivity should be allowed.

For now, the proposed amendments will be out for public comment until March 3, 2025, with reply comments due by March 18, 2025. The Commission will decide what it will adopt as final amendments by May 1, and those will become effective (absent Congressional veto) on November 1, 2025.

US Sentencing Commission, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 24, 2025)

– Thomas L. Root

No Christmas Treats for Prisoners from Sentencing Commission – Update for December 20, 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 ROLLS OUT MINIMALIST 2025 AMENDMENT PROPOSAL

The United States Sentencing Commission yesterday adopted a slate of proposed amendments to the Federal Sentencing Guidelines for the amendment cycle that will end on or before May 1, 2025, with the adoption of amendments to become effective next November.

Anyone who thought the Commission might roll out a proposal to no longer enhance methamphetamine sentences because of purity – something that US District Judge Carlton Reeves (who is currently chairman of the USSC) ruled from the bench two years ago makes no sense – was disappointed (but see below).

lumpofcoal221215Likewise, any federal prisoners hoping for a resolution to last August’s surprise decision to table retroactivity for four amendments that became effective last fall just found coal in their stockings. The Commission had proposed retroactivity for changes in Guidelines covering acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count and a separate 18 USC § 924 gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

Generally, changes in the Guidelines do not apply to people who have already been sentenced, but Guideline 1B1.10 addresses the rare occasions where a Guideline change is retroactive, providing prisoners already sentenced with a chance for a time reduction.

I wrote at the time that the Commission was perhaps responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. After the Commission adopted the amended 1B1.13 in April 2023, Sens John Kennedy (R-LA), Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes” by ”requiring that amendments to the Guidelines receive five votes from the Commission’s seven voting members.”

whine160814At the time, Kennedy complained that “[i]n recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.” The Commission has seven voting members. No more than four members can belong to the same political party.

S.4135 never went anywhere, and it will die with the end of the 118th Congress in 10 days or so. Nevertheless, last June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy and – according to the Senator – “acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”

“I look forward to seeing the fruits of this commitment,” Kennedy said at the time.

The Commission is now seeking to harvest those fruits by issuing a request that the public comment on whether “it should provide further guidance on how the existing criteria for determining whether an amendment should apply retroactively are applied” and “[i]f so, what should that guidance be? Should it revise or expand the criteria? Are there additional criteria that the Commission should consider beyond those listed in the existing Background Commentary to § 1B1.10?”

The answer to whether there should be additional criteria is self-evident, especially because the same players (except for Rubio, leaving Congress for a position in President-elect Trump’s Cabinet) will be back in the Senate.

usscretro230406What the Commission decides will only partially address the Senators’ principal beef against any USSC proposal that passes on a 4-3 vote (at least until the Republicans again hold a majority on the Commission).

Third Circuit Judge L. Felipe Restrepo’s USSC term expires next October, the earliest chance Trump will have to tip the balance of the Commission to conservative. Given that Trump’s previous nominees to the Commission (never approved by the Senate) included US District Judges Danny Reeves and Henry “Hang ‘em High” Hudson, the likelihood that 4-3 Commission decisions will start looking good to Kennedy, Cruz and the others is fairly high.

Other USSC proposals for the amendment cycle include

• creating an alternative to the “categorical approach” used in the career offender guideline to determine whether a conviction qualifies a defendant for enhanced penalties;

• addressing the guidelines’ treatment of devices designed to convert firearms into fully automatic weapons (Glock switches and drop-in auto sears);

• adding a provision to the use of a stolen gun enhancement that requires that the defendant knew the gun was stolen; and

• resolving a circuit split on whether a traffic ticket in an “intervening arrest” that can serve to bump up criminal history.

Public comments are due by February 3, 2025, with replies due by February 18, 2025.

alicecuriouser230317Curiously, Judge Reeves said, “Over the next month, the Commission will consider whether to publish additional proposals that reflect the public comment, stakeholder input, and feedback from judges that we have received over the last year – including at the roundtables we have held in recent months on drug sentencing and supervised release.”

Whether this is a teaser that changes in the Commission’s approach to meth will be on the table is unclear.

Sentencing Commission meeting video (December 19, 2024)

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

USSC, Issue For Comment: Criteria for Selecting Guideline Amendments Covered by §1B1.10 (December 19, 2024)

USSC News Release, U.S. Sentencing Commission Seeks Comment on Proposals to Promote Public Safety And Simplify Federal Sentencing (December 19, 2024)

USSC, Summary of Proposed 2025 Amendments (December 19, 2024)

– Thomas L. Root

Sentencing Commission’s Sounds of Silence on Retroactivity – Update for August 9, 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 PUTS BRAKES ON RETROACTIVITY

deafeningslience240809In the annals of retroactive U.S. Sentencing Commission guidelines, never has such an ambitious retroactivity agenda yieldzed such… silence.

The USSC is the federal agency responsible for promulgating guidelines for federal judges in imposing criminal sentences. Its proposed amendments to those Guidelines — made in the spring of every year — become part of the Guidelines on November 1 unless Congress steps in to veto some or all of the changes.

A Guidelines change that would reduce a sentencing range does not apply to the sentence of a prisoner who has already been sentenced unless the Commission proposes a change in USSG § 1B1.10, the Guideline governing retroactivity.

Retroactivity doesn’t happen often. In 36 years and over 825 amendments, the USSC has made an amendment retroactive 21 times (under 3% of the time).

retro240506This year, the Commission proposed to make four Guideline changes, in areas of acquitted conduct, gun enhancements, Guidelines calculation where a defendant is convicted of an 18 USC § 922(g) felon-in-possession count, a 21 USC § 841 drug trafficking count , and a separate 18 USC § 924(c) gun conviction; and a change in the drug Guidelines to tie mandatory and high base offense levels to statutory maximum sentences instead of more complex factors that inflate sentencing ranges.

The Commission solicited public comment on the proposed retroactivity and the staff prepared retroactivity impact reports that, among other matters, estimated how many prisoners would be eligible for reduced sentences if retroactivity on each proposal was adopted.

However, at yesterday’s meeting, the Commission tersely declined to vote on the measure. After about 10 minutes of discussion on Commission priorities for the coming year, US District Court Judge Carlton Reeves (SD-MS), chairman of the Commission called for a motion to adopt the retroactivity proposal. His call was met with a deafening silence.

Chairman Reeves was not surprised, the decision to defer retroactivity apparently having been scripted beforehand. He said:

The matter fails for a lack of a motion.

The public tuned in today to hear not only about the commission’s final priorities but also our decision about retroactivity. Our final priorities made clear that we are listening closely to the public’s recommendations about how to do our work. Many have called for the Commission to identify clear principles that will guide its approach to retroactivity. After deep deliberation, we have decided to heed those calls. For that reason, we will not be voting on retroactivity today. Nevertheless, I want to thank all of those who submitted comments and testimony regarding retroactivity for these amendments. Please know that your input has been heard and will continue to be heard as the Commission moves forward.

So what happened?

The best speculation is that the Commission is responding to criticism heaped on it for adopting amended Guideline 1B1.13(b)(6), which permits judges to grant compassionate release where a prisoner’s sentence could not be imposed today because of changes in the law that occurred after the sentence was imposed. Subsection (b)(6) contains a lot of caveats: the prisoner must have served 10 years, the change must have created a substantial disparity between the prisoner’s sentence and current sentences for the same offense, and the inmate’s prison record had better be clean as a whistle.

Nevertheless, after the Commission adopted the amended 1B1.13 containing the new subsection (b)(6), Sen John Kennedy (R-LA), a member of the Judiciary Committee, introduced the Consensus in Sentencing Act (S.4135) to require the Commission to achieve “bipartisan agreement to make major policy changes.” The bill would amend 28 USC § 994(a) to require that amendments to the Guidelines receive five votes from the Commission’s seven voting members.

At the time, Kennedy whined that “[t]he Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes.”

The Commission has seven voting members. No more than four members can belong to the same political party.

Sens Ted Cruz (R-TX), John Cornyn (R-TX), Tom Cotton (R-AR) and Marco Rubio (R-FL) cosponsored S.4135, which is stalled in the Judiciary Committee and has no chance of passage before the 118th Congress expires at the end of the year.

Nevertheless, in June, retired US District Judge John Gleeson, a member of the Commission, met with Kennedy, after which Kennedy said that “Gleeson acknowledged the concerns raised about the Commission’s recent practices and confirmed that the Commission will return to making changes on a bipartisan basis.”
“I look forward to seeing the fruits of this commitment.”

I suspect he just did.

can230407The Commission did not reject retroactivity on the amendments, but its intention to adopt guiding principles for retroactivity pretty much ensures that any decision on making the acquitted conduct and other amendments retroactive has been kicked down the road for a year or better.

Sentencing Commission Public Hearing (Video) (August 8, 2024)

Sentencing Commission, Final Priorities for Amendment Cycle (August 8, 2024)

S.4135, Consensus in Sentencing Act

Sen John Kennedy, Kennedy introduces bill to restore bipartisan decision-making at Sentencing Commission (April 7, 2024)

Sen John Kennedy, Kennedy confirms that Sentencing Commission will return to bipartisan agreement for changes to Sentencing Guidelines (June 3, 2024)

– Thomas L. Root

Nothing to See Here Anymore,’ BOP Tells Court About FCI Dublin – Update for June 25, 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.

But first, a mea culpa…

THOSE PESKY DETAILS

embarrassedLast week, I reported on a U.S. Sentencing Commission methamphetamine study that debunked the idea that there was anything special about meth with purity over 90%, despite the fact that 80% plus pure meth comes with much higher Guideline sentencing ranges.

I reported that the study found that meth tested by the government in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%, “measurements dramatically higher than just two years before, when meth purity ranged from 10 to 80%.”

An alert reader questioned my data. It turns out he was correct.

According to the DEA, meth purity ranged from 10% to 80% in the year 2000, NOT 2020. My embarrassment at my error tests out at 100% purity, and I thank my reader for pointing out the mistake.

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

‘WE BURIED THE DUBLIN PROBLEM, SO LET’S STOP TALKING ABOUT IT,’ BOP TELLS COURT

The Federal Bureau of Prisons has asked the U.S. District Court in Oakland to dismiss a class action lawsuit demanding systemic changes at FCI Dublin as moot, on the grounds that no one is imprisoned there anymore.

“The injunctive claims addressing conditions of confinement at FCI Dublin—a facility where no inmates are confined—must be dismissed as moot,” the motion filed last Tuesday argues. The plaintiff’s money damages claims, consideration of which have been stayed until August, would remain on file.

The suit was filed last August by female inmates, alleging rampant sexual assault and retaliation by Dublin staff. BOP abruptly shut down the facility in April shortly after Judge Yvonne Gonzalez Rogers appointed a special master to oversee changes at the prison.

paniccrowd240625

The BOP’s motion admits that Dublin was in “dire need of immediate change.” The agency said, “Following its own deliberative process, BOP leadership determined that it needed to close FCI Dublin and transfer all female adults in custody (AICs) to other federal facilities. The transfer process was conducted subject to various court orders and in coordination with the Court’s special master. That process is now complete, and the AICs previously confined at Dublin are now at new facilities. If Dublin is eventually reopened, it will not be used to house female AICs again.”

The Court has described the closure of Dublin as “hasty and chaotic” but the BOP claims it “was carefully planned” and that the Court was privately advised a month before the April 15 mass movement.

A group of Congressional representatives is investigating allegations that the transfers were conducted inhumanely.

Motion to Dismiss, California Coalition for Women Prisoners v, BOP, ECF 326, Case No 4:23-cv-4155 (ND Cal, June 18, 2024)

KQED-TV, Biden Administration Seeks to Dismiss Lawsuit Over Bay Area Women’s Prison Abuses (June 18, 2024)

– Thomas L. Root

Raising the Bar on Methamphetamine Purity – Update for June 18, 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 METH STUDY ACKNOWLEDGES REALITY

reeves230706Ever since U.S. District Judge Carlton Reeves (Southern District of Mississippi)—who happens to have a side gig as chairman of the U.S. Sentencing Commission—ruled that these days everybody’s methamphetamine was so pure that the “methamphetamine actual” and “ice” purity enhancement in § 2D1.1 of the Guidelines made no sense, people have been asking me when the USSC is going to catch up with reality and throw out the higher sentencing ranges for 90% pure and higher meth.

I thought that we might have seen it in this year’s proposed amendments, but it didn’t happen. However, a Sentencing Commission study released last week suggests that the Commission may be looking for a change in next year’s amendment cycle.

It’s important, too. Over the past 20 years, meth trafficking offenses have risen by 168%, now accounting for half of all federal drug trafficking cases.

The study found that meth tested in fiscal year (FY) 2022 averaged over 90% pure with a median purity of 98%. Furthermore, the meth was uniformly tested at high purity whether it was classified for sentencing as a meth mixture (91% average purity), meth actual (93%) or ice (98%). These purity averages are dramatically higher than just two years before, back when methamphetamine purity ranged from 10 to 80%.

meth240618Under 21 U.S.C. § 841(b)(1)(A)(viii) and (B)(viii), it takes ten times as much weight of a meth mixture as it does actual meth or ice to trigger mandatory minimum penalties. So let’s say you’re a criminal newbie caught with a pound of meth of average purity. That would be 458 grams. If you are sentenced for 458 grams of “a mixture containing methamphetamine,” your advisory sentencing range would be 78-97 months. But if the government pushes for sentencing your pound as “methamphetamine actual,” you would have a mandatory minimum sentence of 120 months with a sentencing range topping out at 135 months.

As the late Johnny Cochrane is reputed to have said (at least by South Park) in his fictional but brilliant Chewbacca defense, “That does not make sense.”

chewbacca240618The Commission can change its Guidelines (and likely will in the next year or two), but altering 21 U.S.C. § 841(b) would require Congressional action.

Meth trafficking sentences averaged 91 months in FY 2022, the longest average among major federal drug trafficking offenses, more than fentanyl (65 months) and heroin (66 months). Meth trafficking offenses carried mandatory minimum penalties more often (74%) than all other drug trafficking offenses (57%).

USSC, Methamphetamine Trafficking Offenses In The Federal Criminal Justice System (June 13, 2024)

United States v. Robinson, Case No. 3:21-cr-00014 (S.D.Miss., December 23, 2022)

– Thomas L. Root

USSC Amendments Going Retro? Your Opinion is Wanted – Update for May 6, 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.

GUIDELINE AMENDMENT RETROACTIVITY COMMENTS OPEN

retro160110The Sentencing Commission published the 2024 proposed Guideline amendments in the Federal Register last Friday, opening up a public comment period on whether certain proposals should be made retroactive.

The publication of the proposed amendments, a required step in their adoption, provides that the proposed changes are intended to become effective November 1, 2024. The statute authorizing the Sentencing Commission (28 USC § 994) gives Congress the right to override some or all of the changes, a power that has almost never been used in the Guidelines’ 28 years of existence.

The proposed retroactivity would apply to the

• the acquitted conduct amendment (USSG § 1B1.3);

• 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 rendered illegible or unrecognizable to the unaided eye;” and

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

retro240506Comments on retroactivity should be filed by June 21, 2024. Written reply comments, which may only respond to issues raised during the original comment period, should be received not later than July 22, 2024.

Comments may be submitted electronically to the Commission or mailed to

US Sentencing Commission
One Columbus Circle NE, Suite 2-500
Washington, DC 20002-8002
Attn: Public Affairs—Issue for Comment on Retroactivity.

Sentencing Guidelines, 89 FR 36853 (May 3)

– Thomas L. Root

“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