The United States Sentencing Guidelines will be officially amended in November for the first time since the First Step Act became law in 2018. In April, the Sentencing Commission released adopted amendments which will become officially part of the Guidelines if Congress does not take contrary action prior to November.

What are the United States Sentencing Guidelines?

The United States Sentencing Guidelines are a set of rules established by the United States Sentencing Commission to guide judges in determining appropriate sentences for federal crimes. They provide a framework that considers the severity of the offense, the defendant's criminal history, and various other factors to calculate an offense level and criminal history category. Based on these factors, the guidelines suggest a recommended range of imprisonment. Judges have discretion to depart from or adjust the Guidelines, but the Guidelines typically play a significant role in federal sentencing. Proper calculation of the appropriate Guideline range is an important part of a federal sentencing hearing.

How Will the Adopted Amendments Affect the Guidelines?

1.  A Qualifying Defendant with Zero Criminal History will receive a two-level reduction in their Offense Level.

I've heard this brand new Guideline referred to as the Zippo Amendment*. A Defendant who has zero criminal history points (a Zero Point Offender- ZPO) can qualify for this two-level reduction if they did not play a leadership role in the criminal activity, there were no guns or violence involved, they were not convicted of a crime of terrorism or a sex offense, they did not personally cause substantial financial hardship to a victim, and the crime was not a hate crime.

The policy statement behind this amendment to guideline §4C1.1 explores the relationship between criminal history and recidivism as well as "extensive data analyses of offenders with no criminal history points." The Zippo amendment includes defendants with criminal history that is not part of their criminal history score because of the age of the conviction!

2.  The Guidelines will no longer include a "status" enhancement for Defendants with fewer than seven criminal history points.

The current guidelines, §4A1.1(d) provide a two-point increase to the defendant's criminal history score if any part of the crime of conviction (including relevant conduct) was committed while under a criminal justice sentence (broadly meaning, probation, post-release supervision, supervised release, parole, work release, escape status, etc). The amendments will eliminate this "status enhancement" in favor of a one-point increase for a defendant who is status enhancement eligible (SEE- like "fool around and SEE what happens") and has seven or more criminal history points. The Commission concluded that "accounting for status on a more limited basis continues to served the broader purposes of sentencing while also addressing other concerns raised regarding the impact of status points." Notably, the commission also found (correctly) that SEE defendants are already subject to greater punishment due to their status because they are likely to face a separate sentence upon revocation of probation and they also will have a higher criminal history points total as a result of the convictions that led to the "status" of being under a criminal justice sentence. The action to limit the impact of status points was explicitly the result of the Commission's "tradition of a data-driven evolution of the guidelines" and cited a study that SEE defendants are not necessarily greater risks of recidivism, at least not if they have otherwise limited scorable history.

3.  The Amended Guidelines Suggest that a Sentencing Court Not use a Prior Marijuana Possession Conviction for a Criminal History Point

The new *proposed amendments include commentary that suggests a criminal history downward departure may be warranted when a *marijuana conviction for simple possession results in a higher criminal history category. It is not uncommon for a federal defendant with otherwise limited criminal history to have a couple historical 1-point convictions for possession of marijuana. The commission specifically noted that a significant portion of the country has legalized the use and possession of cannabis, so the use of convictions for possession for criminal history scoring inevitably leads to disparate sentencing contrary to policy.

4. The Guidelines Will Expand Compassionate Release

The First Step Act significantly expanded opportunities for early release under 18 U.S.C. 3582. Before the Act, early release was nearly impossible to obtain. Since 2018, the law has allowed for early release for "extra-ordinary and compelling circumstances" (often referred to as "Compassionate Release") upon a prisoner's own motion. Prior to the First Step Act, early release could be obtained only upon the motion of the Bureau of Prisons, which was so rare as to not be an option. However, Guidelines still have not been amended since passage of the act, and §1A1.13(a) of the Guidelines does not reflect the change or help guide its implementation. This may not be too big of a deal for folks with judges tending toward compassion, but for the rest of the enormous body of federal prisoners this guidance will be very welcome.

The amended §1B1.13 allows a prisoner to make a motion for early release. The guideline now specifically enumerates circumstances (in addition to a catch-all "other reasons") that alone or in combination create "extraordinary and compelling" reasons for early release:

• Defendant is suffering from a terminal illness.
• Defendant has serious mental or physical health conditions or deterioration due to aging, diminishing their ability to self-care.
• Defendant suffers from a medical condition that requires long-term or specialized care that is not being provided
• Infectious diseases at the correctional facility, including specifically if the defendant is at increased risk from such diseases, and the risk can't be adequately mitigated.
• Defendant is at least 65 years old and has served 10 years or 75% of their term.
• Family-related issues, including incapacitation of the Defendant's parent or the caregiver to Defendant's minor child or child incapable of caring for themself.
• An unusually long sentence, if a change in the law would produce a "gross disparity" with new sentences for the same conduct.
• Changes in the law that do not create a gross disparity can be considered if other "extra-ordinary and compelling" reasons are established, as relevant to the amount of appropriate reduction.
• Rehabilitation of the Defendant, only in combination with other circumstances.

Some of these listed circumstances were moved from application notes to the body of the guideline itself, giving them greater force. Others are new. Either way, if allowed by Congress the expansion of Compassionate Release creates very real opportunities for creative advocacy for early release.

5. Expanded Safety Valve Eligibility

Onerous federal mandatory minimums for drugs can be avoided in one of two ways- either by government motion due to the Defendant providing "substantial assistance" (snitching) or by the so-called safety valve. The safety valve, codified at 18 U.S.C. §3553(f), is incorporated into the Guidelines at §5C1.2. Like Compassionate Release, the First Step Act vastly expanded safety-valve eligibility, but has not previously been incorporated into the Guidelines. In addition to relief from mandatory minimums, the Safety Valve eligibility also provides a 2-level reduction under the drug guidelines at §2D1.1(b)(18) and §2D1.11(b)(6).

Prior to the First Step Act, safety-valve eligibility was limited to individuals who only had one criminal history point. The Act increased that limit to 4-points, exclusive of one-point offenses, and also a prior 3-point offense and a prior 2-point violent offense. This is a massive change! The Guideline amendments incorporate the First Step Act safety valve expansion, which is important because courts were not required to give the 2-level offense level reduction under the Act, even though the defendant was relieved from the mandatory minimum.

Find the Lawyer You Trust to Fight for You

If you or someone you care about are indicted for, or even suspected of, committing a federal crime you should consult a qualified, experienced federal criminal defense attorney as soon as possible. I have been active in federal criminal defense in Eastern North Carolina for several years now, in addition to accepting appointments under the Criminal Justice Act panel since 2020. I am familiar with the court and the prosecutors and am available for consultation and representation. Give me a call at 919-833-8949 or use the contact form on the sidebar to set up a consultation.

*shout out to Doug Passan, host of a great podcast about federal sentencing