Comments to the Sentencing Commission on Retroactive Application of Criminal History Guidelines - FAMM

Comments to the Sentencing Commission on Retroactive Application of Criminal History Guidelines

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Background: On April 27, 2023, the United States Sentencing Commission submitted to Congress amendments to the federal sentencing guidelines. Included in these amendments were new guidelines for two criminal history provisions – status points (two additional criminal history points for people currently serving a criminal sentencing) and zero-point defendants (people with zero criminal history points)

The new amendments reduce and strictly limit the reach of the status point bump. Moving forward, individuals will have only one point (as opposed to two) added if they: (1) receive seven or more criminal history points and (2) committed the instant offense while under any criminal justice sentence (including probation, parole, etc.).

The eligibility requirements for zero-point offenders is a bit more complex.

For defendants who have zero criminal history points,  judges can reduce the sentencing range by two levels if 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.


Typically, guideline amendments apply only prospectively – that is, moving forward, and not to people who have already been sentenced. But for these two criminal history revisions, the Commission is seeking public comment on whether to make these amended provisions retroactive. What would this mean?

Anyone who is serving a sentence and would be eligible for a lower sentence based on the eligibility criteria discussed above were they to be sentenced after the amendments go into effect, could file a motion with the sentencing court asking for a reduction based on the guideline changes.

The Commission published a study detailing the impact of making these amendments retroactive. An estimated 11,495 people would have a lower guideline range today if the status point guideline change was made retroactive. Of these individuals, 43% are Black, 87% are U.S. Citizens, and 93% are male. If the amendment was made retroactive, 2,090 people would be eligible for immediate release. If the zero-point offender guideline was made retroactive, an estimated 7,272 people would have a lower guideline range today. Of those individuals, nearly 10% are Black, while nearly 70% are Hispanic, 46% are U.S. Citizens, and 84% are male.  A total of 1,198 people would be eligible for immediate release if the amendment was made retroactive.

What can you do?

The Commission wants to hear from you. Send a comment to the Commissioners telling them why you think retroactivity is important. We have drafted some language for you below, but feel free to edit your comment in a manner that reflects your story or the story of your loved one.

Draft comment to the Commission:

The language below is a guide. Please feel free to use your own personal stories or circumstances, if you have them. You can submit your comment by visiting the following site and clicking on “Submission Portal”:

Comments must be submitted by June 23, 2023.

Sample Letter:

Dear Judge Reeves,

I support the changes that the Commission made to status points and zero-point defendants and urge you to make these amendments retroactive. It is important that people who would receive a lower guideline range today have the opportunity to make their case to the court and benefit from the Commission’s important amendments.

In making these guideline changes, the Commission intended to lower sentences for people with the least criminal history, and for people whose criminal history was unfairly inflated.  The magnitude of these changes is significant. In total, around 18,775 people would be eligible for retroactivity and of those, an estimated 3,288 people would be immediately eligible for release pending court approval. The justice system has proven it can manage retroactivity as demonstrated by its treatment of retroactivity decisions from crack minus two through drugs minus two which saw over 50,000 motions handled by the courts with collaboration by the parties and U.S. Probation. Courts and attorneys know how to handle these types of motions, and are well equipped to do so here.

The Commission’s ability to update guidelines to reflect best practices on what works and what doesn’t work is a true hallmark of the agency. When the Commission finds that a factor that increases a guideline range doesn’t work and should be changed, people serving sentences that would be lower today should get the benefit of that change, if they are eligible.

Thank you for addressing retroactivity on these two provisions, and thank you for considering my views.