Tag Archives: USSC

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

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