Update to post October 2026: Since this article was published, there have been at least three additional revisions of the United States Sentencing Guidelines. New changes are scheduled to take place Nov. 1, 2026 in less than two weeks! The United States Sentencing Commission has made a lot of progress in simplifying the Guidelines and making helpful clarifications over the past few years. In my opinion, urgent additional work needs to be performed to change the incredibly putative (and ineffective) guidelines for drug cases, including the "ice" vs. "meth" distinction that provides an unnecessarily harsh guideline for defendants convicted of involvement with meth distribution if the drug meets a certain purity thresh hold. The guidelines for mostly pure meth, or "ice" is four times greater than fentanyl, a highly lethal substance that has plagued our streets now for the better part of a decade!

The policy behind the distinction is moot now- it used to be believed that the greater the purity of someone's meth, the closer they are to the source, therefore they are deserving of greater punishment. Nowadays though, nearly pure product is the rule. The streets don't have much market for low grade meth mixtures with significant amounts of cut, because there is a steady reliable supply of cheap high quality "ice." Rather than punish folks with increased culpability due to involvement with high level sources, the Guidelines' treatment of Ice overwhelming results in significant, unnecessary, expensive, and ineffective sentences for low and mid-level involvement with the drug, including a lot of addicts or users whose involvement in trafficking is minimal or at least insignificant. 

Stay tuned as we continue to provide content based upon the ongoing changes to the guidelines. 

Updated Sentencing Guidelines are Inbound

After languishing without a quorum for five years, the United States Sentencing Commission has been busy! Last week the Commission published the proposed new Guidelines for the first time since the First Step Act (FSA) was passed into law. The new Guidelines will take effect in November, absent legislative disapproval. One long-needed task the new Guidelines accomplish is bringing the Guidelines "safety-valve" into accord with the statutory version of the important provision that provides relief to drug offenders with limited criminal history and no disqualifying offense conduct. The new Guidelines will also reconcile with the FSA's expansion of so-called "Compassionate Release" (more properly referred to as "early release motions") that provide judge with discretion to reduce sentences under "extraordinary" circumstances.

What Are United States Sentencing Guidelines?

The Guidelines are a method of calculating a federal criminal sentence. This is achieved by considering the offender's criminal history, offense conduct, and myriad other factors, resulting in a suggested sentence range of incarceration. For many years the Guidelines were mandatory (of course subject to exceptions) but since a 2008 SCOTUS decision they are discretionary/advisory. Still, every sentencing court is required to accurately calculate the Guideline for every sentenced person. The Guidelines were created and are modified by the United States Sentencing Commission, composed of presidential appointees. The Commission regularly amends the Guidelines as a reflection of public policy.

Why are Updated Sentencing Guidelines Important?

The Guidelines have not been updated since 2018. Although he presided over major (and welcome) criminal justice reform, the 45th president did not appoint a Sentencing Commission to guide policy application of the law. Thus, where the FSA dictated leniency and compassion, the Guidelines remained stuck in the amber of pre-2018 law, leaving judges to puzzle through the proper application of the law and leading to great disparity in outcomes for similarly situated defendants sentenced in different courts. Statistically, an overwhelming percentage of federal cases end up at the sentencing phase. Federal law frowns upon disparity in sentencing outcomes; having up to date guidelines is important toward that end. Bringing the guidelines into accord with the FSA, with notable expansions of safety valve eligibility and early release eligibility, publication of amended guidelines should bring welcome relief to criminal defendants, inmates, and the communities that value them.

I will keep an eye on emerging developments in the adaptation and implementation of the First Step Act, and the publication of the new sentencing guidelines. If you or a loved one is under federal investigation or has been indicted, give me a call to discuss!