U.S. Sentencing Commission

Update: July 11, 2023:

FAMM’s General Counsel, Mary Price, will testify before the U.S. Sentencing Commission on July 19, 2023. The hearing will focus on retroactivity. You can read Price’s statement here.

Previous Updates:

On April 27, the U.S. Sentencing Commission delivered guideline amendments to Congress. These amendments will become effective on November 1, 2023, absent congressional action to the contrary. You can read the amendments and the reasons the Commission adopted them here. You can read FAMM’s summary of the amendments below.

On April 5, 2023, the U.S. Sentencing Commission voted to promulgate amendments to the U.S. Sentencing Guidelines. The amendments cover a number of guidelines and policy statements. They include changes to the drug guideline (for fake pills); sexual abuse offenses, including those committed by law enforcement and correctional personnel; the career offender guideline; firearms offenses (in response to the Bipartisan Safer Communities Act); drug offenses and the Safety Valve (to address changes made by the First Step Act); criminal history; and reduction in sentence (compassionate release). There were also amendments to address circuit conflicts and others with technical or minor changes.

Below, we discuss several of the amendments in detail. Note that while the public comment period is over and these amendments are to be sent to Congress on or before May 1, there is one more important issue for comment.  See our discussion of criminal history, below.

These amendments are not in effect right now.  They will go into effect on November 1, 2023 unless Congress passes a bill that the President signs to modify or bar any of them.

1. Amendments to §1B1.13 Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A) (compassionate release).

The amendments describe new “extraordinary and compelling reasons” that might warrant a reduction in sentence. In addition to the existing medical, geriatric, and family circumstances reasons, the Commission proposes to add new extraordinary and compelling reasons:

• Inadequate medical care: This provision covers individuals who are suffering from a medical condition and require, but are not receiving, long-term or specialized care, putting them at risk of serious deterioration or death.

• Pandemic health: Reflecting lessons learned from COVID, this new ground covers individuals who are (1) housed at a correctional facility that is affected by or at imminent risk of an ongoing infectious disease outbreak or public health emergency; and (2) who, due to personal medical conditions, are at increased risk of suffering from severe complications or death that cannot be mitigated should they be exposed.
• Family circumstances: Certain family circumstances have long been grounds for a reduction in sentence, such as release to care for a minor child when the incarcerated person is the only available caregiver. The Commission’s amendment recognizes that individuals also may be eligible for reduction if they are the only available caregiver for a debilitated parent or adult child who is incapable of self-care because of a mental or physical condition. The Commission also allows defendants to demonstrate that there may be others who are similar in kind to immediate family members, for whom the defendant would be the only caregiver.
• Sexual and physical abuse: This provision covers individuals who are survivors of sexual abuse by prison personnel, as well as survivors of physical abuse by prison personnel that results in serious bodily injury. The misconduct must be established by a finding in a civil, criminal, or administrative proceeding, unless those proceedings are unduly delayed or the individual is facing imminent danger.

• Other reasons: The Director of the BOP always has had broad discretion to identify other reasons for a sentence reduction. The new provision provides a more limited authority. It gives the BOP Director and judges the discretion to identify an unlisted extraordinary and compelling reason. The other reasons must be similar in gravity to the ones expressly listed in the policy statement: terminal illness, serious medical condition, advanced age, extreme family circumstance, and sexual or physical abuse.
• Unusually long sentences: This provision gives judges discretion, after full consideration of the prisoner’s individualized circumstances, to determine whether a change in the law that would result in a lower sentence today could be a ground for sentence reduction. The person must have served at least ten years of an unusually long sentence, and there must be a gross disparity between the sentence being served and the one that would be imposed today. (Changes to the guidelines that are not made retroactive cannot be considered a change in the law for purposes of this ground.)

2. Amendments to Criminal History

The Sentencing Commission made several changes to the way criminal history is calculated in Chapter 4 of the guidelines. Accumulating criminal history points can increase one’s guideline range and affect the ultimate sentence.

Status Points

One change will reduce the use of so-called “status points.”  The guidelines add two criminal history points when the “defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” Status points were intended to deter individuals from recidivating by increasing their calculated guideline should they do so while still involved in the system.

Status points do not serve their intended purpose. According to the Commission, status points do little to predict someone’s likelihood of being rearrested. And yet, they have a significant impact on one’s criminal history. Status points were added in 37.5% of cases over the last five years. More than 61 percent of all defendants with status points saw their Criminal History Category, and thus the recommended sentencing range, increase.

The Commission voted to amend the Criminal History guideline to eliminate the two-point addition for those serving any form of a criminal justice sentence. The amendment would instead add one point if a defendant: (1) receives seven or more criminal history points and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status. This would halve the number of status points, and limit their use to those who have significant criminal history.

Zero-Point Offenders

“Zero-point offenders” is the term given to defendants who have no criminal history points. According to the Commission’s data, people with no criminal history points are at much lower risk of recidivating when compared with people who have only one criminal history point. Yet defendants with no criminal history are treated in the same way as those with one criminal history point for purposes of calculating their guideline range.

With this difference in mind, the amended Criminal History guideline would provide a two-level decrease for some defendants with zero points. Judges can reduce the range by two levels if the defendant meets a long list of criteria. They are: the defendant did not: (1) receive any criminal history points; (2) receive a terrorism adjustment; (3) use violence or credible threats of violence in connection with the offense; (4) possess, receive, or otherwise handle a firearm or other dangerous weapon; (5) personally cause substantial financial hardship; (6) receive a hate crime, vulnerable victim, or serious human rights offense adjustment; (7) receive an aggravating role adjustment; or (8) engage in a continuing criminal enterprise. In addition the instant offense cannot have resulted in death or serious bodily injury; was not a sex offense; and not an offense Involving Individual Rights.

For people who receive a two-level reduction and whose offense level is not higher than 11, the amendment counsels courts to consider a sentence other than imprisonment. If an individual receives the two-level reduction but has an offense level higher than 11 and that offense level, in the court’s judgment, overstates the gravity of the offense, the court might also consider a departure to a sentence other than imprisonment.

Retroactivity of the Criminal History Amendments

The Commission is seeking public comment on whether to make the two new amendments discussed above – status points and zero-point offenders – retroactive. If the Commission decides to apply these changes retroactively, anyone who has previously been sentenced and would be eligible for a lower sentence under the amendments would be eligible to file a motion with the sentencing court asking for the reduction. The Commission expects to publish an analysis of how many people might be eligible for retroactive relief and by how much. We anticipate that a significant number of individuals will be eligible for retroactivity.

FAMM submitted a public comment letter on June 23.  FAMM’s General Counsel, Mary Price, has been invited to testify at a hearing on retroactivity on July 19.

3. Circuit conflicts (Acceptance of Responsibility).

The guidelines provide defendants a two-level reduction from the calculated guideline range when they clearly demonstrate acceptance of their responsibility for the offense. The government may move for an additional one-level reduction if it states that the defendant has timely notified the prosecution of his intention to plead guilty and thus spared the government the need to prepare for trial.

The issue the Commission moved to resolve has to do with whether the government can decline to move for the additional one-level reduction when a defendant moves pre-trial to suppress evidence and/or raises post-trial sentencing challenges.

The amendment adds a definition of the term “preparing for trial” that distinguished trial preparation from both pre-trial and sentencing preparation. The amendment explains that “preparing for trial” is ordinarily indicated by actions taken close to trial, such as preparing witnesses, in limine motions, proposed voir dire questions and jury instructions, and witness and exhibit lists.

In contrast, pre-trial preparation such as suppression and discovery motions or litigation about the charging documents are not consider trial preparation for purposes of withholding the additional one-level reduction. Similarly, post-conviction activity such as sentencing objections and appeal waivers are not considered “preparing for trial.”

Safety Valve

The statutory safety valve allows a court to disregard a mandatory minimum sentence in drug cases if the defendant meets certain criteria. Traditionally, those criteria was only applicable for defendants who, among other things, had no more than one criminal history point. In the First Step Act, Congress updated the statutory safety valve to allow for broader eligibility. The Commission updated the language in the safety valve guideline, USSG §5C1.2, so that it mirrors the language in the updated statutory safety valve. The Commission also updated USSG §2D1.1 and §2D1.11 to allow for a 2-level reduction for individuals who meet the new expanded eligibility criteria. Please note, however, that there is a circuit split on how to interpret the expanded eligibility criteria. A case pending before the Supreme Court, United States v. Pulsifier, will resolve this dispute. It is likely that once the Supreme Court decides how this eligibility criteria should be interpreted, the Commission will update the safety valve guideline to be in accord with the Court’s determination. For more information on the circuit split issue, please see our Description of Palomares v. United States (the case raised the same issue as Pulsifier).

The Commission decided not to vote on any amendments dealing with acquitted conduct but we expect it will take the issue up in the next amendment cycle.

You can read all the amendments here. You can watch the hearings and/or the Commission’s vote using this link.

A reminder that these amendments do not go into effect until November 1, 2023. We will update you as things develop.

Updated April 24, 2023

Previous Update (from 2022)

The United States Sentencing Commission met on January 12 and voted to publish a slew of proposed amendments to the federal Sentencing Guidelines. They have asked for public comment, which is due on March 14. You can read the proposals, watch hearings about them, and you can write a letter to the Commission telling it what you think about the proposals and submit it here.

FAMM’s main focus has been on expanding compassionate release. We know that the BOP cannot be trusted to be the sole gatekeeper for compassionate release. So, we were glad to see that the Commission is considering both expanding the criteria for compassionate release and giving judges the same discretion as the BOP has in determining when a sentence reduction is warranted beyond those criteria.

The new and/or expanded grounds include:

1. Adding to medical grounds:
2. When a person has a medical condition that requires long-term or special care to avoid serious deterioration but the care is not provided in a timely or adequate manner by the prison;
3. When a public health emergency or ongoing outbreak of infectious disease poses an increased risk,that cannot be effectively reduced, to individuals vulnerable to severe medical complications.
4. Adding to family circumstances grounds:
5. Upon the death or incapacitation of the caregiver of the incarcerated person’s child who is 18 years old or older and who is unable to care for themselves due to a mental or physical disability;
6. When the incarcerated person’s parent is incapacitated and has no one else to care for them.
7. Extending the reach of this provision to an individual whose relationship with the incarcerated person is similar in kind to that of an immediate family member.
8. Adding two new grounds:
9. When the individual is the victim of sexual assault or physical abuse resulting in serious bodily (including psychological) injury; and
10. When changes in the law that would make continued incarceration inequitable.

Finally, the Commission poses three compassionate release alternatives to cover unforeseen circumstances. They cover

1. Any other circumstances, alone or in combination, that similar to those already covered by the guideline; or
2. Changes in the individual’s circumstances (or events that took place after the sentence was imposed) that would make continuing the sentence inequitable; or
3. Any extraordinary and compelling reason other than or in addition to those covered by the guideline.

Here is the list of other guidelines the Commission proposes to amend:

1. Updating the drug safety valve to bring it in line with changes made by the First Step Act;
2. Adding penalties for new firearms offenses;
3. Amending the career offender guideline (specifically eliminating the categorical approach in favor of a guideline definition of crime of violence and drug trafficking offense);
4. Eliminating the use of acquitted conduct at sentencing;
5. Changing how criminal history points are added or not for people with no countable criminal history and for people whose instant offense was committed while on probation or some other form of supervision;
6. Increasing penalties for sexual abuse committed by law enforcement and correctional personnel;
7. Adding penalties for certain gun crimes;
8. Increasing penalties for “fake pills” that contain fentanyl;
9. Resolving several circuit court disagreements; and
10. Making technical and miscellaneous amendments.

These are proposed changes. We have a long way to go. The Commission has asked for the public to comment on the proposed amendments (comments will be accepted through March 14). The Commission will not decide which proposed changes to adopt until later this spring and any changes they adopt will not take effect until November 1, 2023.

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.

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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.

Email the U.S. Sentencing Commission

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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.

2018: Sentencing Commission Hearing on First Offenders, Alternatives to Incarceration, Synthetic Drugs and Fentanyl

There were no guideline amendments in 2017.

Compassionate Release

Read Commission Priorities Here