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What To Know In Applying For Criminal History Sentence Reduction – Update for October 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.

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root

SCOTUS Tackles the ‘And/Or’ Debate in Pulsifer Case – Update for October 6, 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.

SUPREMES HEAR ORAL ARGUMENT ON DRUG SENTENCING “SAFETY VALVE”

The Supreme Court opened its nine-month term last Monday hearing oral argument on the meaning of a First Step Act amendment to 18 USC § 3553(f), a subsection known as the “safety valve.”

Under the “safety valve” provision, judges could disregard mandatory minimum sentences for people convicted of certain nonviolent drug offenses who had limited criminal history and met a few other conditions.

andor210524At issue is how to interpret a part of the law that determines who is eligible for this provision, which could potentially lead to a shorter sentence. Three requirements under the provision involve prior criminal history, and the court is being asked to decide whether people no longer qualify if they meet one of these criteria — or if they must meet all three.

Mark Pulsifer pled guilty to one count of distributing 50 grams of methamphetamine and then sought application of the “safety valve.” To be eligible, a defendant cannot have “(A) more than 4 criminal history points… (B) a prior 3-point offense, as determined under the sentencing guidelines; and (C) a prior 2-point violent offense, as determined under the sentencing guidelines.”

At issue is whether “and” means “and.”

The government argues that “and” means “or,” so defendants are ineligible if they fail any of the three subparts. “It joins together three independently disqualifying conditions by distributing the phrase ‘does not have.’ That’s the only interpretation that avoids rendering the first subparagraph entirely redundant,” the Solicitor General’s attorney told the justices.

Pulsifer’s lawyer disagreed. “Letting the government get to ‘or’ when Congress said ‘and’ would encourage Congress to be sloppy with the most basic English words, leaving square corners far behind, and in the criminal context, where fairness matters most. The Court should hold Congress to what it wrote.”

words221110At oral argument, the justices spent most of their time parsing the grammar and conjunctions, trying to determine whether § 3553(f) uses the word “and” to join three eligibility criteria together or distributively across three independently disqualifying criteria. The government’s lawyer often appealed to a canon of construction rooted in “common sense,” a suggestion not that well received. “I don’t know that canon, but I guess it’s a good one,” Justice Neil Gorsuch quipped.

Pulsifer’s lawyer rejected it as well: “The government focuses a lot on common sense, but it’s common sense that if Congress wanted to say “or,” it would have said “or,” he contended. “It knew how to do that in other parts of this very sentence, of § 3553(f). The — Congress’s own drafting manual says to do so, and that would be the ordinary meaning — that would be the ordinary term to use in order to express the meaning that the government attributes to this statute.”

The court’s ruling may affect thousands of defendants with pending cases and those in federal prison. And how to read an ambiguous “and” may become important to a lot of zero-point people pretty soon, too.

zeropoints230420The Sentencing Commission’s retroactive zero-point amendment (USSG 4C1.1) goes into effect in a month. Section 4C1.1(a)(1) directs that an eligible defendant is one who “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.” Does this mean that no one with a 3B1.1 enhancement or who was convicted of a 21 USC § 848 continuing criminal enterprise is eligible? Or does it mean that you must have both a 21 USC § 848 conviction and a § 3B1.1 enhancement to be disqualified?

Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog that he suspected Pulsifer

will end up with a 5-4 vote in favor of the government’s proposed statutory interpretation that would restrict the reach of the First Step Act’s expansion of the statutory safety valve exception to drug mandatory minimum sentencing terms. But I would not entirely discount the possibility that the four Justices who seemed most favorable toward the defendant’s reading, particularly Justices Gorsuch and Jackson, might find a way to peel off a key fifth vote (especially since the Chief was pretty quiet throughout and Justice Kagan hinted toward the end that she might be less sure than she seemed at the outset).

Berman anticipates a decision in winter 2024, although he offers the chance that “this one might take quite a while if lots of Justices decide to write on lots of broader statutory interpretation topics (like the reach of the rule of lenity and/or the use of legislative history and/or corpus linguistics).”

New York Times, On First Day of New Term, Supreme Court Hears Debate Over First Step Act (October 2, 2023)

The Hill, Supreme Court opens term with case on prison terms for drug offenders (October 2, 2023)

Slate: The Supreme Court’s Oddest Pairing Comes Out Swinging on Behalf of Criminal Defendants (October 2, 2023)

Transcript of Oral Argument, Pulsifer v. United States, Case No. 22-340 (October 2, 2023)

Sentencing Law and Policy, Rounding up some accounts of lengthy SCOTUS oral argument in Pulsifer safety valve case (October 3, 2023)

– Thomas L. Root

Supremes Are Back From the Beach, Guideline Amendments Lurch Toward Effective Date – Update for September 26, 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.

PREVIEW OF COMING EVENTS

events230926With Congress careening toward a federal government shutdown (always bad news for BOP inmates), a freshly indicted Sen Bob Menendez (D-NJ) being pressured to quit, and about 300 military appointments being held up by Sen Tommy Tuberville (R-AL), it’s looking increasingly doubtful that Congress will do anything in the next 25 work days to block the Sentencing Guideline amendments from becoming effective on Nov 1.

Former Sentencing Commission attorney Mark Allenbaugh, founder of the website Sentencing Stats, has rolled out a web tool for people to use in order to determine whether they qualify for the retroactive zero-point Criminal History guidelines reduction (new USSG § 4C1.1). It can be found at https://www.zeropointoffender.com.

vacationSCOTUS180924Meanwhile, the Supreme Court returns to work after a 3-month vacation for its annual “long conference.” At today’s long conference, the Justices will decide which of some 950 petitions for writ of certiorari – about 15% of all petitions filed during the year – should be granted review.

“The summer list is where petitions go to die,” Gregory G. Garre, a solicitor general in the George W. Bush administration, told the New York Times back in 2015. While the odds of getting the Supreme Court to grant review of a case are about one in a hundred, at the long conference, the rate is roughly half of that, about 0.6%.

Zero Point Offender

The Hill, All eyes on ethics as Supreme Court justices return to Washington (September 26, 2023)

The New York Times, Supreme Court’s End-of-Summer Conference: Where Appeals ‘Go to Die’ (August 31, 2015)

– 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