Since 1987, the U.S. Sentencing Commission (USSC) has been writing and updating the federal sentencing guidelines, which are used when calculating sentences in federal cases. Unlike mandatory minimum sentencing laws (which are mandatory), the guidelines are advisory. The USSC proposes new guidelines for new criminal laws and issues guideline “amendments” each year that alter existing guidelines.
FAMM participates in the guideline amendment process by testifying before the USSC, providing feedback and analysis of proposed changes, and meeting with USSC commissioners and staff. Since the guidelines are used to sentence over 80,000 federal offenders each year, our advocacy for better guidelines can have a big impact! FAMM believes that the advisory guidelines should be used instead of mandatory minimum sentences because they provide courts with guidance as well as flexibility to make the punishment fit the crime and the individual.
2019 Amendment Cycle
The U.S. Sentencing Commission has just released a set of proposed priorities for its work that could result in new and amended guidelines late next year.
Every year the Commission publishes proposals for its work and asks for public comment on the proposals. Every year FAMM writes to the Commission to tell the commissioners what we think of their proposals. This is your chance to weigh in with your opinion of the proposals. You can also tell the Commission what you think should be on their priorities list, but isn’t.
There is much in this year’s set of proposed priorities that should interest FAMM members. They include work focused on Congress — including how Congress defines career offenders — and work to promote changes to mandatory minimums, including the so-called “stacking requirement” of 18 U.S.C. sec. 924(c). The Commission is also looking at studying the guideline that considers whether family ties and the impact on minor children of losing a parent to prison should be grounds for a lower sentence. These are important priorities for FAMM and we will be writing a letter to the Commission supporting these as priorities.
And, the Commission has a tantalizing reference to studying the use of compassionate release, asking if the guideline for judges considering compassionate release motions (sec. 1B1.13) “effectively encourages the Director of the Bureau of Prisons to file a motion for compassionate release when ‘extraordinary and compelling reasons’ exist.” We are not quite sure what that means, but any attention on federal compassionate release is welcome and reform is needed. FAMM has worked on compassionate release for years and testified before the Commission in 2016. Much of what we asked for made it into the current compassionate release guideline.
But, some proposed priorities we would like to see are missing, including any reference to relief for first offenders, a priority the Commission pursued but then dropped last year without a vote. See our discussion about that here and here.
FAMM will be writing in response to the Commission’s invitation and you can too. The deadline for the Commission to receive comment is August 10, 2018. We will keep you updated on our work on this in the weeks to come.
We need your voice! Every year the Commission asks for public comment on the proposals. This is your chance to weigh in with your opinion of the proposals. You can also tell the Commission what you think should be on their priorities list, but isn’t.
On April 12, the Sentencing Commission voted to send a number of proposed amendments to Congress. Unfortunately, it failed to advance one of the most eagerly anticipated amendments: the reduction for first offenders. Due to vacancies that have not been filled, the Commission has only four members. And that is the minimum number of members needed to vote. Apparently, the four commissioners could not agree on the first offenders proposal, so it died without a vote.
Here are some of the things the commission did vote to do:
- Establish a class-based approach to sentencing for synthetic drugs (such as bath salts and spice), and adopt a so-called marijuana equivalency for those substances, as well as for fentanyl.
- Provide for a 4-level enhancement for knowingly misrepresenting fentanyl as something else.
- Suggest to judges they impose an alternative to incarceration for non-violent defendants with no prior convictions whose sentencing ranges do not exceed 14 months.
- Ensure that a defendant who pleads guilty but challenges the so-called relevant conduct (such as drug weight) may still benefit from a reduction for acceptance of responsibility if the challenge is not frivolous or false.
You can read all the adopted amendments here.
The commission will transmit these proposed amendments to Congress. Unless Congress acts to disapprove them, they will become part of the Sentencing Guidelines on November 1, 2018.
Up next will be an invitation to comment on proposed priorities for 2019. This will likely come early this summer. We will let you know as soon as that happens.
Amendment Cycle Archive
Sentencing Guideline Reports and Resources:
Understanding the Difference: Guidelines vs. Mandatory Minimums
Understanding the Difference: Armed Career Criminal vs. Career Offender
Current Version of the Federal Sentencing Guidelines
USSC’s Introduction to the Federal Sentencing Guidelines
Federal Sentencing Guideline Amendments in a Nutshell
Sentencing Commission Quick Facts
1. An Armed Career Criminal is subject to a mandatory minimum sentence of 15 years. Federal law prohibits people with prior felony convictions from possessing firearms and/or ammunition. A person convicted of being a felon in possession of a firearm can be sentenced under the federal sentencing guidelines to a sentence no longer than ten years. But, a person can be sentenced as an armed career criminal under 18 U.S.C. sec. 924(e)(1) (“ACCA”) when she is:
- convicted of being a felon in possession of a firearm or ammunition under 18 U.S.C. sec. 922 (g), AND
- is found at sentencing to have three prior violent felonies  and/or serious drug offenses.
This is a mandatory minimum sentence. There is no safety valve for ACCA sentences. The only way a defendant can escape the ACCA mandatory minimum sentence is if the government successfully makes a motion to the court to reduce the sentence for substantial assistance to the government.
2. A Career Offender is not subject to a mandatory minimum sentence. Rather, one is sentenced according to the advisory federal Sentencing Guidelines under Sec. 4B1.1. When Congress authorized the Sentencing Commission and directed it to write sentencing guidelines, it told the Commission that the guidelines should recommend a sentence at or near the statutory maximum for defendants who are
- convicted of crimes of violence or drug offenses, who have
- two or more prior convictions for crimes of violence  or drug offenses.
This is a guideline sentence. Judges are free to depart and/or vary from the Career Offender guideline. These sentences are frequently very long and judges do not always think they are just or necessary.
 The Supreme Court decided a case that limited the kinds of prior violent convictions that can count toward the three needed to trigger ACCA.
 The U.S. Sentencing Commission has proposed changing the Career Offender guideline to align it with a recent Supreme Court decision about which crimes of violence trigger sentences under ACCA.
The U.S. Sentencing Commission’s main job is to write the federal sentencing guidelines, which are used to guide judges in sentencing all federal (not state) crimes. But the Commission is also responsible for proposing changes (called “amendments”) to existing guidelines.
What kinds of guideline amendments does the Commission propose?
Guideline amendments could include:
- Technical amendments: These are small corrections to the guidelines that do not change them in meaningful ways (e.g., adding punctuation, fixing spelling mistakes, ).
- Substantive amendments: These are significant changes, such as changes to sentence lengths, drug quantities, how criminal history scores are calculated, and factors that can be used to increase or lower a given guideline
- Retroactivity: Previously passed guideline amendments sometimes reduce sentences – however, these amendments do not apply to people sentenced before the amendment goes into effect. To give people who are already in prison the benefit of an amendment that reduces sentences, the Commission must vote to make that amendment “retroactive” and amend USSG § 1B1.10(c) to include that amendment in the list of retroactive amendments. See below for more details on this
How does the Commission amend the guidelines?
The Commission typically acts every year to adjust some existing guidelines and write new guidelines for new crimes created by Congress. Amendments don’t become part of the federal guidelines automatically – they must go through a special process first. Here is the timeline for how guidelines are amended by the Commission:
JANUARY OR FEBRUARY: The Commission votes to publish guideline changes, called “proposed amendments,” that it is considering adopting this year. The Commission makes the proposed amendments available to the public and asks people to send in their thoughts (called “public comments”) on, for example, whether the Commission should adopt the proposed amendments and how the proposed amendments should be written. Sometimes the Commission will also publish what it calls “issues for comment,” which tend to be wide-ranging questions about how to approach the guideline punishment structure as a whole.
60 DAYS LATER: Public comments are due to the Commission. FAMM usually submits comments to the Commission, but any member of the public can write to the Commission and express their opinion on the proposed amendments.
BY MAY 1: The Commission announces to Congress and the public how it is going to amend the guidelines. It does so by submitting a final set of proposed guideline amendments to Congress for review. These amendments may be different than the proposed amendments first announced by the Commission at the beginning of the year. This is because, for example, the Commission has read and considered the comments it received from the public and the Department of Justice and may have incorporated some of those comments and changed how the amendments are written.
MAY 2 – OCTOBER 31: Any time during this period, Congress can reject any of the guideline amendments by a majority vote in the Senate and House of Representatives.
NOVEMBER 1: Any guideline amendments not rejected by Congress go into effect. The changes automatically apply to everyone sentenced ON or AFTER November 1 of that year, unless doing so would violate the ex post facto clause of the U.S. Constitution (see USSG § 1B1.11).
TYPICALLY ON OR AFTER NOVEMBER 1: The Commission decides whether to make amendments that lowered guideline sentences apply to people who were sentenced BEFORE the those amendments went into effect on November 1. This is called making an amendment “retroactive.”
The Commission amends the guidelines in this manner every year.
How often are guideline amendments made retroactive?
Very few guideline amendments are made retroactive. Guideline amendments that lower guideline sentences cannot help people who were sentenced BEFORE the amendment goes into effect, unless the Commission makes that amendment retroactive.
When an amendment is made retroactive, does it automatically reduce people’s sentences? No. Even when the Commission makes a sentence-reducing amendment retroactive, that amendment does not automatically help people sentenced under the old, higher guideline sentence. First, the person must file a motion under 18 U.S.C. § 3852(c) in the court that sentenced him and ask the court to apply the new guideline amendment to his case and reduce his sentence. The prosecution may agree with or oppose a sentence reduction. It is entirely up to the court to grant the reduction, and it must follow certain rules the Commission has adopted that may limit who can benefit and how big the sentence reductions can be.
Does FAMM provide people with legal help or advice when they file a motion to have a retroactive guideline amendment applied to their cases?
No. FAMM cannot provide people with any legal advice, research, representation, or referrals to other attorneys. If a guideline amendment reduces sentences and is made retroactive, people who may benefit should contact their former attorneys or the Federal Public Defender’s office in the district where they were convicted.
If a guideline amendment is made retroactive, will FAMM help people compute a new guideline sentence in their cases?
No. If a guideline amendment reduces sentences and is made retroactive, people who may benefit should contact their former attorneys or the Federal Public Defender’s office in the district where they were convicted. FAMM cannot calculate or recalculate sentences for people.
Do the Commission’s guideline amendments ever reduce sentences for state prisoners? No. The Commission deals only with the federal sentencing guidelines, which apply only to people convicted in federal – not state – courts. State sentences are controlled by individual states’ laws and, where they exist, state sentencing guidelines, not the U.S. Sentencing Guidelines or the Commission.
How can people learn more about the Commission’s amendments and retroactivity? Visit FAMM’s website, famm.org, where we keep our members updated on the Commission’s amendment cycle each year, including which amendments pass and become retroactive. You can also visit the U.S. Sentencing Commission’s website at www.ussc.gov for additional information about the guidelines, guideline amendments, and retroactivity.
The Commission publishes very helpful fact sheets on a number of sentencing issues. They combine and analyze data collected by the Commission in 2-page summaries. Read Quick Facts on topics from fraud to drugs to career offender status and everything in between.
Have you ever wondered how many people benefit when the Commission makes a guideline reduction retroactive? You can find updated and final reports on retroactivity here.