Tag Archives: first-offender proposal

Sentencing Commission Meets: Nothing New – Update for January 22, 2018

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


The U.S. Sentencing Commission met last Friday, and federal inmates were anxious. Chiefly, the anticipation was due to an email newsletters circulating in the institutions have been predicting adoption of a Guidelines change that will cut sentences.

Virgin180102The change has been dubbed the “first offender proposal.” As the Guidelines are currently employed, the advisory sentencing ranges are set out in a chart. The y-axis of the chart is the Total Offense Level, determined by an assigned base offense level for the crime, along with additions and subtractions for various facts. The x-axis is the defendant’s criminal history.

For example, a guy with a prior state conviction for felony burglary is convicted in federal court for supplying cocaine to two street-level dealers who sold for him. After being indicted, he pleads guilty. The amount of cocaine he moved may set the base level at 26. Because was a manager of two other people, 2 levels get added. But because he pled guilty as soon as he was indicted, 3 levels get subtracted for acceptance of responsibility. His Total Offense Level is 25. The prior felony gets him 3 criminal history points, placing him in Criminal History Category II.

For someone with a Total Offense Level of 25 and Crim History II, Guidelines sentencing table sets an advisory sentencing range of 63-78 months.

senttable180122A few years ago, the Sentencing Commission noted that while some people had led exemplary lives up to their federal indictment, others fell in Criminal History I despite the fact they had some prior brushes with the law. A guy with a misdemeanor possession of drugs, for example, may have gotten 30 days suspended, and thus scored only one criminal history point, which kept him as Crim History I. Another guy may have done five years for a felony, getting out of prison in 2000. Because his prior bit ended more than 15 years ago, it no longer counted in the Guidelines criminal history score.

The Commission considered whether to modify the Criminal History guidelines to account for the difference between a virgin and someone who fell into Criminal History I more by luck than by conduct. It thus floated a proposal to reward the virginal defendant with a reduction in Total Offense Level. The proposal, made in December 2016, went nowhere, primarily because everything that was proposed then went nowhere: an unusually large number of USSC commissioner terms expired in December 2016, and due to Obama leaving and Trump arriving, no one got appointed to replace them right away. Without a quorum, nothing could happen.

By April 2017, the Commission was back to fighting strength, but too late to adopt proposed changes by May 1st. The USSC statute makes that date magic, because Sentencing Commission amendments must languish in front of Congress for six months (to give legislators a chance to veto any they don’t like) before becoming effective on November 1st. So the Commission decided to skip a 2017 Amendment cycle altogether.

indecision180122In August, the Commission refloated the proposed amendments that were orphaned the previous January. The Commissioners are still trying to figure out whether the first offender proposal should reward any defendant with zero criminal history points, or whether it should only reward defendants who are truly tyros, having a lifetime history of no convictions. The USSC is also undecided whether to reward first offenders with a one- or a two-level reduction.

There is one additional wrinkle: A change in the Guidelines, as a rule, only affects people who have not yet been sentenced. If it is to affect any of the 183,000-odd federal prisoners who are already doing time, the USSC must first declare it retroactive. Retroactivity is never a done deal. Instead, it depends on a lot of factors, some objective (such as whether retroactive motions for sentence reduction would clog the courts) and some subjective (such as whether fundamental fairness requires retroactivity).

That has not prevented a couple of outside businesses that take inmate money in exchange for “paralegal” services to trumpet that inmates need to hire them right now to assist in First Offender motions for reduction. This is despite the fact that (1) no one knows for sure whether the first offender proposal will in the USSC’s final 2018 amendment package sent to Congress; (2) no one knows for sure to whom and to what extent any first offender proposal would apply; and (3) no one knows whether the first offender proposal will ever be made retroactive. It is not all that comforting that the last change to the criminal history Guidelines, to eliminate a point previously added if the new offense was recent to a prior probation or prison term, was not made retroactive. But none of this deters hopemongers on the outside from collecting money from inmates and their families.

When the Sentencing Commission announced several weeks ago that last Friday’s meeting would include a “possible vote to publish proposed guideline amendments and issues for comment,” many thought that the vote would be to decide on which of the options in the first offender proposal to advance. Instead, the Commission advanced a synthetic-drug guideline, made changes in an immigration offense guideline, and voted on unspecified “technical amendments.” There was not a word on anything else.

bureaucracy180122Shortly after the meeting, however, the Commission clarified its rather opaque procedures. In a press release, the USSC noted toward the bottom of the page that “[t]oday’s proposals join other proposed amendments published in August 2017 that were held over from the previous amendment cycle. (Read “holdover” proposals”.)  The Commission is expected to vote on the full slate of proposed amendments during the current amendment year ending May 1, 2018.”

So the Commission meant only to add to the holdover amendments it published last August, when the latest iteration of the “first offender proposal” was promulgated. Still, they could have said that at some point in their 17-minute meeting. But apparently, the first offender proposal may still be on track, and may still be in the package to be voted on by May 1.

We’re not just one-issue voters, complaining about the Commission’s failure to explain that the first offender proposal was still in the package lurching toward May 1. Ohio State University law professor and sentence guru Doug Berman noted last Friday in his sentencing blog that “my own cursory understanding of all these proposals suggests to me that the holdover proposal addressing first offenders and alternatives to incarceration may be the only very consequential proposed amendment potentially in the works….”

U.S. Sentencing Commission, USSC Proposes Amendments (Jan. 19, 2018)

– Thomas L. Root


Sentencing Commission Readying Amendment Package – Update for January 9, 2018

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


USSC170511The U.S. Sentencing Commission has scheduled a public meeting for Friday, January 19, 2018 at 10:30 a.m. The agenda includes no substantive items other than a report from the chair and what the USSC terms a “possible vote to publish proposed guideline amendments and issues for comment.”

The “possible vote” could be to finalize a package of proposed amendments for public comment prior to recommending the package to Congress by May 1. Once sent to Congress, the amendments would become effective November 1, 2018, unless Congress blocked them.

Of primary interest to many inmates is the “first offender” proposal, which would give people who lack any prior criminal history points a reduction of 1 to 2 levels. The idea, which the USSC floated a year ago, has not yet been firmed up as to who would qualify for the reduction and how great the reduction might be. If the measure becomes an amendment to the Guidelines, it would not be retroactive to already-sentenced inmates unless the USSC decides in a separate proceeding to do so.

snakeoil180109The possibility that a “first offender” proposal may be adopted and may someday be retroactive has already spawned a cottage industry of the usual “hopemongers” trying to sell inmates “analyses” of their cases, to determine whether they would be eligible for a sentence reduction under 18 USC 3582(c)(2). Inasmuch as the Sentencing Commission does not itself know to whom the “first offender” proposal will fit, or whether it will ever apply to people already convicted, there would seem to be a little alchemy (or perhaps old-time snake oil) involved.

The USSC meeting will be streamed live over the Internet.

U.S. Sentencing Commission, USSC Schedules Public Meeting for January 19, 2018

– Thomas L. Root


Keep Those Marks… uh, Inmates Stirred Up – Update for December 1, 2017

We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.


In the post-conviction world, a number of legal and paralegal purveyors offer inmates assistance (for a fee, of course) in filing habeas corpus petitions, motions to reduce sentences, and other appropriate (and sometimes, not-so-appropriate) means of cutting prison time. We don’t have trouble with shameless commerce: we provide some of those services, too, and we don’t do it for free.

Nevertheless, prisoners are an extraordinarily vulnerable class of consumers. The desire for freedom is a fairly powerful urge, and many inmates are less-than-educated in the ways of the criminal justice system. Anyone mongering hope finds it fairly easy to shake money out of the families of inmates wanting to get out early.

puzzled171201For that reason, people offering post-conviction help to inmates should have a strong moral compass as well as a sense of caution when it comes to suggesting that a change in the law/ regulations/guidelines/ whatever is about to make everything better. Which brings us to today’s puzzler:

Another outfit which shall remain nameless (we’ll call it “XYZ Paralegal”) sent out a inmate-targeted email last week that included this observation about the U.S. Sentencing Commission:

“We were also curious why November 6 came and went without the new First Offender proposal being published in the Federal Register, which must be done to start the clock for making it effective for potential sentence reduction.”

This comment left us curious, too, curious as to what part of the Sentencing Commission’s rulemaking process the folks at XYZ don’t get. Remember that the so-called first-offender proposal is a contemplated change in the criminal history section of the Guidelines that would award extra credit to first-time people who had no prior criminal history. Currently, the best criminal history category – Criminal History I – is reserved for people with zero or one criminal history point. But someone can fall into Crim History I with a prior misdemeanor conviction, or even a sheaf of prior felonies if they are somewhere more than 15 years old. The first-offender proposal would award extra credit, in the form of a reduction in Guidelines score, for virgins, people with utterly clean records.

virgin171201The Sentencing Commission released an 85-page package of proposed amendments, which included the first-offender proposal, last August, setting a public comment period that ended Oct. 10, and a reply comment period ending Nov. 6. In the proposal, the USSC asked for suggestions on a couple of alternatives: first, should the benefit be a one-level reduction or two-? Second, should the credit go to anyone with a zero criminal history score (which would benefit people who had convictions that were too old to be counted) or should it be reserved only for the purest of the pure, people with no prior convictions inter lifetimes?

So what would have made the XYZ people think that (1) all of the comments and reply comments would be digested as of midnight on November 6, and (2) the Commission would have adopted a first-offender proposal from the various options it floated, and (3) the adopted proposal would already be in the Federal Register. At minimum, this supposition exhibits a faith in the efficiency of government that anyone who’s ever dealt with Uncle Sam has long since lost.

The USSC has never suggested that the amendment proposals it released last August were intended to be adopted at any time before November 1 of this year. Indeed, anyone who is familiar with how the USSC has run the annual amendment cycle for the past 30 years knows how it works. The Commission plans to assemble a final package of amendments for adoption in April 2018. By law, those amendments will only become effective after a 6-month review period by Congress, or November 1, 2018.

There is an alternative explanation for the XYZ folks’ email. They note that XYZ is “continu[ing] to review the cases of people who appear to be eligible for relief under that proposal.” This may be why they are implying that an amendment not slated for effectiveness (if ever) for almost a year is on the cusp of being announced.

Inmates having their cases reviewed for “eligibility” under the first-offender proposal (and their families, who are paying the bill) should be forewarned: (1) No one yet knows whether there will even be a first-offender proposal; (2) If one is ever adopted, no one yet knows what the requirements will be for a Guidelines reduction, or whether the reduction will be 1-level or 2-level; and (3) Most important, the first-offender proposal will not apply to people who are already sentenced as of the day it goes into effect, unless the USSC has a separate proceeding to decide whether the first-offender proposal will be retroactive.

stars171201If all the stars align and if the first-offender proposal is adopted, and if it applies to an inmate’s case, and if it is retroactive, we never-theless expect that no one already convicted would be eligible to seek relief before about March or April of 2019 (based on what happened in the 2-level drug quantity reductions in 2007, 2011 and 2014). That is a guess, but it is one that – unlike suggesting that relief is just around the corner and you had better get your case reviewed now – makes sense.

U.S. Sentencing Commission, Proposed Amendments to the Sentencing Guidelines, 82 FR 40651 (Aug. 24, 2017)

– Thomas L. Root