2023 Federal Sentencing Guideline Amendment Update
On April 6, 2023, the United States Sentencing Commission voted to adopt proposed amendments to send to Congress. Unless Congress enacts law to modify or disapprove any amendment, they will all go into effect November 1, 2023.
The Commission voted to adopt 11 new amendments. They were unanimous on all amendments except for the adopted amendment to Section 1B1.13 (reduction in sentence), which was split 4-3.
While quick summaries of some of the key changes the Commission adopted are below, the exact language of all adopted proposed amendments can be found here, and I urge you to review them to determine whether you could ask for variances prior to November 1 or whether to speed up or delay sentencing. Also, many of the remarks by Chair Reeves and the other Commissioners at yesterday’s meeting may be helpful when arguing for the good amendments or to argue the intended limits of the bad amendments. A transcript of the full meeting should be available on the Commission’s website in the coming weeks, and a video is available now.
Compassionate Release Guideline Section 1B1.13
There is a lot more to cover for federal Compassionate Release changes, but here are some highpoints. The Commission voted to expand 1B1.13 in several ways.
First, the Commission updated the text of the policy statement consistent with the FIRST STEP ACT to permit motions filed by the defendant. It also moved its descriptions of EXTRAORDINARY AND COMPELLING REASONS previously in the commentary to the text.
Second, it expanded the medical circumstances that could qualify as EXTRAORDINARY AND COMPELLING REASONS to include certain conditions not being sufficiently treated in the Federal Bureau of Prisons (BOP), and certain instances of public health emergencies or ongoing outbreak of infectious diseases.
Third, the Commission expanded the family circumstances EXTRAORDINARY AND COMPELLING REASON.
Fourth, it created an EXTRAORDINARY AND COMPELLING REASON for certain persons in custody who are victims of sexual abuse or physical abuse committed by, or at the direction of prison authorities.
Fifth, the Commission amended the “other reasons” catch-all to permit other circumstances that “are similar in gravity” to those described in the policy statement.
Sixth, the Commission explained changes in the law may be considered an EXTRAORDINARY AND COMPELLING REASON but only if a person is serving “an unusually long sentence and has served at least ten years”; only where the change in law “would produce a gross disparity between the sentence being served and the sentence likely to be imposed” today; and non-retroactive guideline changes cannot be considered. Aside from cases of unusually long sentences, the Commission states that changes in the law cannot be considered when determining whether EXTRAORDINARY AND COMPELLING REASONs exist but can be considered in the Section 3553(a) analysis about the extent of a reduction.
Seventh, the Commission made clear that while rehabilitation cannot be an EXTRAORDINARY AND COMPELLING REASON on its own, it may be considered in combination with other factors.
Criminal History Score for Federal Sentencing Guidelines
The Commission promulgated three ameliorative amendments.
First, the Commission eliminated status points in most cases (the +2 that apply if a person committed the instant offense under a criminal justice sentence). A +1 status point applies only in cases where a person already receives 7 or more criminal history points.
Second, the Commission created a new guideline at Section 4C1.1 which provides a -2 offense level reduction for “certain zero-point offenders.”
Relatedly, the Commission amended Section 5C1.1 application note 4 to advise that a sentence other than imprisonment is “generally appropriate” if a person is in Zone A or B of the sentencing table and gets the Section 4C1.1 reduction. It also advises that a departure, including to a sentence of non-imprisonment, may be appropriate for a person in any sentencing zone if they qualify for Section 4C1.1 and the guideline range overstates the gravity of the offense.
Third, the Commission added to its examples of instances where a Section 4A1.3 downward departure for overrepresentation of criminal history may be appropriate to include persons who receive criminal history points from a conviction for the simple possession of marijuana.
Federal Sentencing Acceptance of Responsibility
The Commission clarified that the government should not withhold the motion for the Section 3E1.1 third level for reasons other than having to prepare for trial. The Commission defined what constitutes preparing for trial narrowly to include things like preparing witnesses, in limine motions, voir dire, jury instructions, witness and exhibit lists. It clarified that pretrial proceedings (including discovery and suppression motions) are ordinarily not preparing for trial and anything post-trial (like sentencing litigation) is not considered preparing for trial.
Firearms
In the Bipartisan Safer Communities Act (BSCA), Congress required the Commission to raise penalties for certain firearms offenses, to provide an enhancement for persons who commit certain firearms offenses who are affiliated with gangs/cartels, and to provide that sentences for straw purchasing offenses reflect any mitigating factors including limited criminal history, role, and coercion. The Commission implemented this directive but interpreted the bad parts narrowly.
First, the Commission created a tiered enhancement (between 2 and 5 levels) at Section 2K2.1(b)(5) for persons convicted of certain straw purchasing and trafficking offenses.
Second, the Commission created a 2-level enhancement for people who qualified for the tiered (b)(5) enhancement and who committed the offense in connection with their participation in a criminal organization/group.
Third, the Commission created a 2-level reduction for persons who qualify for the tiered (b)(5) enhancement, who do not have more than 1 criminal history point, and (A) who were motivated by an intimate/familial relationship or threats or fear to commit the offense and were otherwise unlikely to do so; or (B) were unusually vulnerable to being persuaded to commit the offense.
Fourth, the Commission expanded the conduct that qualifies for the upward departure in application note 13 (offenses involving substantially more than 25 firearms) to include conduct like transporting, selling, transferring, and disposing.
Fifth, and separate from the BSCA, the Commission added a 4-level enhancement at Section 2K2.1(b)(4)(B)(ii) for unserialized firearms (targeting privately made firearms or “ghost guns”), but, unlike the rest of Section 2K2.1(b)(4), this provision carries a mens rea requirement (knowledge/willful blindness).
Guideline Career Offender
The Commission made several amendments to Section 4B1.2, I am highlighting two. But first, the news that many are asking for:
First, the Commission voted to expand Section 4B1.2 to include Hobbs Act Robbery as a “crime of violence” (via the definition of “robbery”) and to move its definitions of robbery, forcible sex offense and extortion from the commentary to the text.
Second, the Commission moved the provision which includes inchoate offenses as a “crime of violence” or “controlled substance offense” from the commentary to the text. The Commission tabled the proposal to remove the categorical approach. It did not vote to weigh in on which drug schedule (federal or state, and from what date) applies when defining a “controlled substance offense.” And it did not vote to further expand “controlled substance offense” to include offers to sell.
NOTE: the Commission did not eliminate the categorical approach.
Overdue Guideline Safety Valve Changes
The Commission updated Section 5C1.2 so that it mirrors Section 3553(f) as amended by the FIRST STEP ACT. The Commission also updated Section 2D1.1 and Section 2D1.11 to make the -2 reduction for persons who are safety-valve eligible contingent on a person meeting the criteria as written in Section 3553(f). It did not take a position on whether the FIRST STEP ACT expanded criminal history criteria should be read conjunctively or disjunctively.
Fake Pills (Fentanyl Update)
The Commission added a new paragraph to Section 2D1.1(b)(13) to add an alternative 2-level enhancement where a person represented or marketed as a legitimately manufactured drug a mixture or substance containing fentanyl or a fentanyl analogue and acted with willful blindness or conscious avoidance of knowledge that the substance was not the legitimately manufactured drug.
Sex Abuse
The Commission increased the base offense level in Section 2A3.3 (criminal sexual abuse of ward) from 14 to 18. It also added a cross reference directing that Section 2A3.1 should apply if the offense involved sexual abuse or attempt to commit criminal sexual abuse.
Federal Criminal Defense
Federal sentencing is complex and ever evolving. Cody Cofer is a nationally recognized federal criminal defense attorney. He is a former Assistant Federal Public Defender for the Northern District of Texas. He has successfully defended hundreds of federal criminal cases and has more federal defense trial experience than most lawyers under the age of 65. If you are facing a federal investigation or prosecution, contact the Cofer Luster Law Firm to discuss your defensive strategy and prospects.
