We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
HERE COME THE NEW GUIDELINES
The US Sentencing Commission has set a meeting for Thursday, April 16, to adopt proposed amendments for the coming amendment cycle.
The Sentencing Reform Act requires that any proposed Guidelines amendments be sent to Congress by May 1. The Commission typically adopts its slate of amendments in April. Congress then has 6 months to vote down any amendment it doesn’t like. If Congress does nothing (which it has done all but once in the SRA’s 36-year history), the amendments will become effective on Nov 1.
For many prisoners, the most important proposed change would be the options to modify 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 rolled out 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 ago).
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 USSG § 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 set out in § 2B1.1(b)(10). Currently, “sophisticated means” is widely applied by courts to virtually any economic offense more complex than stealing from 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.
Also up for consideration are proposals to expand the sentencing ranges that should be eligible for probation, home confinement, and “split sentences” (half in prison, half on home confinement). More significant are proposed changes in the Guidelines governing whether someone is considered a “career offender,” a label that dramatically increases the advisory sentencing range a defendant faces. 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.
None of the proposed amendments will apply to people already sentenced unless the Commission holds a separate proceeding to decide whether retroactivity should apply to any of the amendments. The Commission has asked for comment on retroactivity in this amendment cycle, but while several amendments have been proposed for retroactivity since 2024, no decision has been made. The Commission has said that it wants to examine the procedure it employs to determine retroactivity, but so far, it’s been like the weather – everyone talks about it but no one does anything about it.
US Sentencing Commission, Public Notice of Meeting
~ Thomas L. Root
