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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

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

“Their Verdict Didn’t Matter”: Taming the ‘Acquitted Conduct’ Sentencing Monster – Update for March 8, 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.

ACQUITTED CONDUCT ISSUE ARRIVES WITH A LOT OF BAGGAGE

The U.S. Sentencing Commission completed two days of hearings yesterday on what, if anything, it should do to rein in “acquitted conduct” sentencing, the Guidelines- and Supreme Court-sanctioned practice of relying on evidence that a defendant committed a crime even if a jury had found him or her not guilty of that offense.

acquitted240308Jessie Ailsworth knows what that feels like. During this week’s hearings, he told the Commission he felt relieved when he heard the jury return 28 “not guilty” verdicts in his 1996 trial for crack cocaine distribution. But Jessie said “fairness went out the window” when he got hammered with 30 years for the seven counts on which he was found guilty.

The judge based Jessie’s sentence on all of the counts in the indictment, including the 28 acquitted counts.

“I was very angry for a long time,” Jessie told the Commission. “I felt like the system failed me. I really believe that the jury did their best. They took their time, wrote notes, asked questions, and reached their verdicts. But, when I was sentenced, the court sent me to prison based on the jury’s acquittals. I felt like the system didn’t just fail me, it also failed my jury. We all knew what the jury was trying to do, and when I was sentenced, I wondered why we had even spent all those days with the jury, if at the end of it all, their verdict didn’t matter.”

Jessie was one of 15 witnesses testifying over the two days. Others included judges, probation officers and advocates. Judge Deborah Cook of the 6th Circuit Court of Appeals drew a distinction between “the important distinction in the proof necessary for convicting versus sentencing… That is, so long as the defendant receives a sentence at or below the statutory maximum set by the jury’s verdict, the district court does not abridge [a] defendant’s right to jury by looking to other facts, including acquitted conduct, when sentencing within that statutory range.”

Proof140424Ohio State University law professor Doug Berman, writing in his Sentencing Policy and the Law blog yesterday, explained how the question is stickier than either Jessie or Judge Cook might think. Prof Berman wrote that “rights directed at a balanced and thorough process — in other words, rights that support accuracy concerns or that tend to put the prosecution and defense on a more even playing field — do apply at sentencing. Rights that offer the defendant special protections — such as those that automatically resolve errors in the defendant’s favor or primarily protect the defendant’s autonomy — do not apply at sentencing. Framed only a bit differently, one might see concerns for sentencing “accuracy” to be a kind of Crime Control concern, and one that would counsel against preventing judicial consideration of acquitted conduct. But the jury trial right is fundamental to our nation’s vision of Due Process and our commitment to “defendant special protections,” and that’s surely why many are troubled by any judicial sentencing process that functionally disregards a jury’s decision to acquit on certain charges.”

Prof Berman suggests (without endorsing this outcome) that if factual accuracy is paramount at sentencing, the judge will consider acquitted conduct in all its glory. This, of course, is a slippery slope. How about evidence that the judge suppressed and the jury thus never heard? How about proffers (attorneys telling the judge what their witnesses would have said if allowed to testify)?

If due process (protecting a defendant’s rights) is the correct model, then a jury’s acquittal on any particular count is ‘game, set, match’ for sentencing. This is at the expense of accuracy and the core legal principle, first enunciated by Marcus Tullius Cicero two millennia ago, to “let the punishment fit the crime.”

The “due process” model, too, is a slippery slope. After all, “acquitted conduct” sentencing is only a concern in the 2-3% of federal prosecutions that actually go to trial. We’re talking about elephants when the issue should be all animals that are not elephants. For the overwhelming 97% of cases in which the defendant pleads guilty, the Guidelines permit sentencing on “related conduct.” Related conduct can be found by the court only by a fairly squishy “preponderance of the evidence” standard, and the government may meet that standard with hearsay evidence and fuzzy math from witnesses the defendant has no right to confront. In drug and fraud prosecutions especially, where the amount of drugs or amount of loss drives the Guidelines sentencing range, a “due process” model should demand that standards for determining facts at sentencing provide the same “reasonable doubt” and 6th Amendment right of confrontation that a defendant enjoys during the conviction phase.

Prof Berman observed that as he watched the Commission’s hearing “explore[] many of the devilish details, it was clear how acquitted conduct’s intricacies may largely explain why past Commissions have avoided these issues as a policy matter and why the US Supreme Court avoided these issues as a constitutional matter since its 1997 Watts decision.”

can230407Speaking at a symposium at Ohio State last Monday, Judge Carlton Reeves, chairman of the Sentencing Commission, said that the Commission took up acquitted conduct “out of deference to the Supreme Court” after it denied certiorari in McClinton v. United States and said, “Well maybe the Sentencing Commission ought to look at it.”

Earlier, in a Sentencing Commission news release, Judge Reeves said, “When the Supreme Court tells us to address an issue, the commission listens. From continuing the use of acquitted conduct to restricting (or even eliminating) its use in sentencing, all options are on the table.

Sentencing Commission, Public Hearing on Acquitted Conduct (March 6-7)

Sentencing Policy and the Law, USSC hearings on acquitted conduct: the devilish details amid a fundamental criminal process debate (March 6)

Kansas Reflector, Kansas man says prison sentence based on acquitted conduct was ‘ultimate betrayal’ (March 6)

– Thomas L. Root

Sentencing Commission Proposes Acquitted Conduct Sentencing Change – Update for December 18, 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.

MOVING RIGHT ALONG…

USSC170511Last Thursday the U.S. Sentencing Commission acted with uncharacteristic alacrity, adopting proposed amendments for the 2024 amendment cycle about a month earlier than has been typical over the past 30 years.

The Commission proposes seven changes in Guideline policy in a 755-page release, the most anticipated of which is the use of acquitted conduct at sentencing.

The Commission proposes adopting one of three acquitted conduct options:

Option 1 would amend § 1B1.3, the “relevant conduct” Guideline, to provide that acquitted conduct is not relevant conduct for determining the guideline range. It would define “acquitted conduct” as conduct constituting an element of a charge of which the defendant has been acquitted by the court, except for conduct establishing the instant offense that was “found by the trier of fact beyond a reasonable doubt.”

Option 2 would amend the § 1B1.3 Commentary to provide that a downward departure may be warranted if the use of acquitted conduct has a “disproportionate impact” on the guideline range.

Option 3 would amend USSG § 6A1.3 (which addresses the standard of proof required to resolve Guidelines disputes) to provide that while a “preponderance of the evidence” standard generally is sufficient, acquitted conduct should not be considered unless it is established by clear and convincing evidence.

acquitted230106The Supreme Court last June denied 13 petitions for writ of certiorari related to use of acquitted conduct in sentencing. Four Justices felt the Commission should first address the issue. US District Judge Carlton W. Reeves, chairman of the USSC, said, “When the Supreme Court tells us to address an issue, the Commission listens… [A]ll options are on the table.”

The USSC proposal also addresses counting juvenile convictions for criminal history. The Commission proposed changes that would limit the impact of those convictions on criminal history scoring and expand consideration of a defendant’s youth at sentencing.

One piece of bad news is the Commission’s proposal to undo the effects of the 2019 Supreme Court Kisor v. Willkie decision. A year ago, the 3rd Circuit relied on Kisor in United States v. Banks to hold that the loss enhancement under USSG § 2B1.1(b)(1) includes only what was actually lost. The Circuit reasoned that the word “intended” appears only in the 2B1.1 commentary and not in the Guideline itself, and thus “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Sentencing for “intended loss” is the fraud equivalent of “ghost dope“:  Often, “intended loss” is what the government says it is, and that figure shoots the Guidelines sentencing range to the moon.

Banks sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines. The 3rd said the USSC lacked authority to use its commentary – which is not subject to Congressional approval before adoption – to expand the meaning of “loss” to include what was intended but did not happen.

loss210312The USSC now intends to short-circuit the Kisor v. Willkie debate (and to kneecap the Banks decision) by moving “intended loss” from the commentary into the text of 2B1.1. Because that amendment will be subject to a possible (but improbable) veto by Congress veto, the Kisor v. Willkie problem with 2B1.1 will melt as fast as snowflakes on a hot stove.

The USSC drew its proposed amendment from policy priorities adopted last August. Not making the final cut were policy priorities on career offender (and not for the first time) and methamphetamine.

The proposed amendments will be open for public comment period until February 22, 2024. A public hearing will occur after that. Final proposed amendments will be sent to Congress by May 1 to become effective next November 1, 2024.

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (December 14, 2023)

USSC, US Sentencing Commission seeks comment on proposals addressing the impact of acquitted conduct, youthful convictions, and other issues (December 14, 2023)

USSC, Public Hearing (December 14, 2023)

USSC, Federal Register Notice of Final 2023-2024 Priorities (August 24, 2023)

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

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

– Thomas L. Root

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

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

SENTENCING COMMISSION CLIFFHANGER SENDS CRIMINAL HISTORY CHANGES RETROACTIVE

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Final vote for retroactivity was 4-3.

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

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

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

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

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

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

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

– Thomas L. Root

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

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

OCCASIONALLY (BUT RARELY) I’M RIGHT

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

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

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

MR. EXPLAINER TACKLES RETROACTIVE GUIDELINES

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

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

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

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

• Second, the two changes have conditions attached:

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

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

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

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

(4) the offense is not a sex offense;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– Thomas L. Root

What’s Old Is New – Update for July 11, 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.

SCOTUS DENIAL OF ACQUITTED CONDUCT SENTENCING REVIEW MAKES LITTLE SENSE

As everyone knows, on June 30 the Supreme Court finally denied review to a thundering herd of petitions (13 in all) raising the constitutionality of acquitted conduct sentencing. And in so doing, the Court suggests that it’s way behind the times.

acquitted230106Acquitted conduct sentencing is the practice of using a charge of which a defendant was acquitted by a jury to enhance a sentence. The lead petitioner, Dayonta McClinton, was convicted of robbing pharmacies but acquitted of killing one of his fellow robbers in an argument over sharing proceeds. Nevertheless, the judge more than tripled his sentence from a range of 57-71 months to a sentence of 228 months because the murder was “related conduct,” despite the fact a jury said the petitioner was not guilty of killing his co-conspirator.

A careful reading of the statements issued by some Justice on the denial adds equivocation to five months of evasion.

When the Supreme Court denied review, Justice Sotomayor dissented and several other Justices issued statements. Last week, in his Sentencing Policy and the Law blog, Ohio State University law professor Doug Berman wrote at length about the denial of review. “It is quite obvious that objections to the use of acquitted conduct at sentencing raise constitutional issues,” he said. The certiorari petition filed by Dayonta McClinton makes this clear in its Question Presented: “Whether the Fifth and Sixth Amendments prohibit a federal court from basing a criminal defendant’s sentence on conduct for which a jury has acquitted the defendant…’ These rights are, as the Court put it in Apprendi, “constitutional protections of surpassing importance” because they define restraints on state powers and processes to impose criminal punishments.”

The statements of Justices Kavanaugh, Gorsuch and Barrett suggested these Justices voted against granting certiorari because the Sentencing Commission was considering new guidelines for acquitted-conduct sentencing. Justice Kavanaugh wrote that it is “appropriate for this Court to wait for the Sentencing Commission’s determination before the Court decides whether to grant certiorari in a case involving the use of acquitted conduct.” But as Berman observes, Kavanaugh

does not explain why it is ‘appropriate’ to leave unresolved a constitutional issue while a federal agency might address a policy issue… The Justices’ statements referencing the USSC do not account in any way for how any ‘Sentencing Commission determination’ would have any impact on the Court’s consideration of ‘constitutional protections of surpassing importance.’

Policy is policy, but constitutionality is fundamental. As Berman notes, whether acquitted conduct sentencing is constitutional has nothing to do with whether the USSC thinks that it makes policy sense to permit acquitted conduct sentencing. Obviously, the USSC once thought so (given that USSG § 1B1.3 relevant conduct sentencing has been a fixture of federal sentencing since 1988). As Berman put it, “How the USSC (or Congress) might choose to regulate sentencing law and process would not and could not resolve the array of constitutional concerns that the Supreme Court was asked to consider in McClinton. Indeed, the USSC and Congress cannot even know the full reach and limits of their powers to set forth rules concerning acquitted-conduct sentencing with constitutional matters unresolved.”

Besides, the USSC and Congress can only speak to acquitted conduct sentencing at federal sentencing, even though over 90% of sentences are handed down by state courts.

wrong160620Berman cites another problem with the Supreme Court’s punt on acquitted conduct sentencing. Justice Sotomayor’s dissent says that “the Sentencing Commission, which is responsible for the Sentencing Guidelines, has announced that it will resolve questions around acquitted conduct sentencing in the coming year.” The Kavanaugh, Gorsuch and Barrett statement says, “The Sentencing Commission is currently considering the issue.”

Neither is correct.

Berman suspects that Sotomayor’s dissent and Kavanaugh’s statement were written months ago, before the Sentencing Commission – which proposed an acquitted conduct sentencing amendment in January – withdrew its acquitted conduct sentencing proposal for further study on April 5th. What’s more, when the Commission released its proposed 2024 amendment cycle priorities last month, acquitted conduct sentencing was conspicuously absent.

“It no longer seems to be accurate to state that the Commission ‘has announced that it will resolve questions around acquitted-conduct sentencing in the coming year’” or that it is currently considering the issue, Berman wrote last week.

The Supremes seem to expect the USSC to assume the burden. The USSC, which is ill-equipped to do so, expects SCOTUS to do its job. Expect nothing from either body on acquitted conduct sentencing: you won’t be disappointed.

Sentencing Law and Policy, Inartful dodgers: constitutional concerns with acquitted conduct that only SCOTUS can address (July 4, 2023)

Sentencing Law and Policy, Inartful dodgers: did the Justices write cert denial statements in the acquitted conduct cases months ago? (July 5, 2023)

– Thomas L. Root

Acquitted Conduct Coming Around Again at Supreme Court – Update for May 30, 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.

IS 13 A LUCKY NUMBER FOR ACQUITTED CONDUCT?

lucky13-230530For the past five months, we’ve been watching McClinton v. United States, a petition in front of the Supreme Court challenging the constitutionality of acquitted-conduct sentencing.

You’d think that fact that a jury has acquitted a defendant of criminal conduct should prevent a court from taking that conduct into account at sentencing, but since United States v. Watts in 1997, as long as a defendant is convicted of any criminal offense, punishment for that offense can be enhanced to account for conduct for which a jury found the defendant not guilty.

Some state courts have held acquitted conduct sentencing to be unconstitutional, and some former Supreme Court Justices – Antonin Scalia, Ruth Bader Ginsburg – and current Justice Clarence Thomas have condemned the practice.

McClinton and four similar petitions were relisted once in January. “Relisting” means the justices considered the petitions at a weekly conference and then deferred a decision on whether to grant review (certiorari) to the next conference. A “relist” suggests that one or several Justices support granting the petitions.

duplicity2305309In late January, the Dept of Justice got the Supreme Court to place a hold on McClinton and four other petitions by essentially assuring SCOTUS that proposed Guidelines amendments rolled out by the Sentencing Commission on January 12th – which included a proposal to ban acquitted conduct sentencing – were going to fix the problem. DOJ told the Supreme Court that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.”

You may recall that after selling the Supreme Court on tabling the acquitted conduct petitions, DOJ filed an unctuous set of comments with the Sentencing Commission a few weeks later arguing the USSC lacked authority to place restrictions on acquitted-conduct sentencing because 18 USC § 3661 bars restricting judges as to the information about the background and conduct of defendants that they can consider.

(As an aside, I note that McClinton’s counsel promptly informed the Supreme Court about DOJ’s gamesmanship in trying to torpedo McClinton because the Sentencing Commission would fix the problem at the same time it was whining to USSC that the agency lacked the legal right to do so).

The Sentencing Commission decided on April 5 not to act on acquitted conduct this year, although it said it would try to take the issue up next year. Now, maybe because of DOJ’s duplicity, the Supreme Court relisted those original five cases for a second time, to be discussed at last Thursday’s conference. And now, the five pending petitions have been joined by an additional eight cases raising the same or similar issues.

As John Elwood put it in SCOTUSBlog last week, “We’ll find out soon how lucky these 13 petitions are.” ‘Soon’ could be this morning at 9:30 am Eastern, when the results of last week’s conference are announced.

McClinton v. United States, Case No. 21-1557 (petition for certiorari pending)

SCOTUSBlog, Acquitted-conduct sentencing returns (May 24, 2023)

Sentencing Law and Policy, Catching up, yet again, with a big bunch of relisted acquitted conduct petitions pending before SCOTUS (May 24, 2023)

– Thomas L. Root