Tag Archives: guidelines

Sentencing Commission Announces Slate of Fall Amendments – Update for April 22, 2024

Leave a comment

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

SENTENCING COMMISSION TAKES A WHACK AT ACQUITTED CONDUCT

The US Sentencing Commission last week adopted a slate of proposed amendments to the Guidelines, finally addressing the acquitted conduct issue that has bedeviled the Commission and Supreme Court for the past two years.

can230407SCOTUS sidestepped the question last year, sitting on 13 certiorari petitions raising the question of whether sentencing for acquitted conduct – that is, conduct for which a defendant has been found not guilty by a jury – is constitutional. At the prodding of the Dept of Justice – which told the Supremes that they should let the Sentencing Commission handle it only to then tell the Sentencing Commission it lacked the power to do so – SCOTUS finally denied the cert petitions last July, with several justices saying they would wait for the Sentencing Commission to address the issue.

The acquitted conduct Guidelines amendment will redefine “relevant conduct” under USSG § 1B1.3 to exclude conduct for which a defendant was acquitted in federal court. Because judges must rely on “relevant conduct” to set the Guidelines sentencing range, the change is significant.

For example, if a defendant is convicted of distributing cocaine but acquitted of selling heroin, the amount of heroin that the government said he had sold currently be factored into his Guidelines range as long as the judge found it more likely than not that he had actually sold it. The proposed amendment would prohibit counting the heroin regardless of whether the judge thought the defendant had done it or not.

“Not guilty means not guilty,” Sentencing Commission Chairman Judge Carlton W. Reeves, who sits on the Southern District of Mississippi bench, said. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.”

reeves230706Commissioners were divided on whether to consider enforcing the acquitted conduct sentencing amendment retroactively. A majority voted to have the USSC staff prepare a retroactivity impact analysis, which is the initial step toward making an amendment retroactive.

Sen. Richard Durbin (D-IL), chairman of the Judiciary Committee, said in a press release, applauded the Commission’s vote, noting that it came after he and Sen Charles Grassley (R-IA) introduced the Prohibiting Punishment of Acquitted Conduct Act of 2023. The legislation would have prohibited judges from using conduct acquitted by a jury. The measure has not gained consideration the full Senate.

The Commission is allowed to grant retroactivity – which lets people already sentenced according to Guidelines that are now being amended go back to court to secure the benefit of the amendment in the form of a reduced sentence – on new defendant-friendly amendments. Ratroactivity on last fall’s criminal history amendments was vigorously opposed by some commissioners and the DOJ, which has an ex officio representative on the Commission. This time around, the Commission is considering whether to make multiple defendant-friendly changes retroactive:

• the acquitted conduct amendment;

• a change to juvenile sentences that eliminates adding 2 points for prior juvenile incarcerations of more than 60 days;

• a change to §2K2.1(b)(4)(B)(i) to provide that the 4-level enhancement gun serial number obliteration applies only if the serial number has been modified such the original number is “is rendered illegible or unrecognizable to the unaided eye;” and

• a change to Commentary in §2K2.4 to permit grouping of 922(g) gun count with drug trafficking count where the defendant has a separate 18 USC 924(c) conviction based on drug trafficking.

During the retroactivity vote, Commissioner Claire Murray – a former Trump administration DOJ official – made the obvious point that judges may also still rely on acquitted conduct at sentencing when considering the § 3553(a) sentencing factors, including the nature and circumstances of the offense and the history and characteristics of the defendant, which courts must consider at sentencing, regardless of the Guidelines advisory sentencing range.

The bad news in the amendments was pretty much expected. For economic crimes, the recommended sentence under the guidelines increases dramatically as the amount of loss resulting from the offense increases.

shakeitoff240423As it is now written, the loss is defined in the Guidelines commentary as the higher of actual loss or intended loss. If you try to steal the Hope Diamond from the Smithsonian (value $250 million) but only get a rhinestone imitation (value $250) because the real one had been rented out to Taylor Swift for the weekend, the Smithsonian’s actual loss would be just a few bucks, but the intended loss would be a quarter billion.

In 2022, the 3rd Circuit held in United States v. Banks that the Commentary expanded the definition of loss beyond the ordinary meaning of “actual loss,” and thus, “intended loss” could not be used to set a defendant’s Guidelines. The new loss amendment moves the commentary section into the actual guideline, making sure that intended loss is included in setting the Guideline sentencing range and allowing the use of gain from the offense as a substitute for loss.

Whether the changes will become retroactive depends in part on USSC data on how many prisoners would be eligible for a reduction. If the number is too high, the Commission becomes concerned that the courts will be overwhelmed with reduction motions.

Finally, unhappy that the Commission last year adopted a new compassionate release guideline and made the criminal history guidelines retroactive on a 4-3 vote, Sen John Kennedy (R-LA) last week introduced the Consensus in Sentencing Act to require that changes to the Guidelines get at least five votes out of the seven Commissioners.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, said it “cannot be pure coincidence” that Kennedy introduced the bill the day before last week’s USSC meeting. The bill stands little chance of passing before Congress expires at the end of the year.

Reuters, US panel prohibits judges from sentencing for ‘acquitted conduct’ (April 17, 2024)

Law360, Sentencing Commission Limits Acquitted Conduct Sentencing (April 17, 2024) 

Press release, Durbin Applauds Sentencing Commission’s Unanimous Vote To Prohibit Acquitted Conduct From Being Used In Sentencing Guidelines (April 18, 2024)

Sentencing Law and Policy, Senator Kennedy introduces “Consensus in Sentencing Act” to increase USSC votes needed for guideline amendments (April 16, 2024)

– Thomas L. Root

A Year Later, Banks May Have Started What Chevron Could Finish – Update for November 10, 2023

Leave a comment

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

FRAUD STORM BREWING OVER 3RD CIRCUIT BANKS RULING?

A defense attorney calls it “really a potential sea change in federal sentencing,” Bloomberg Law reported last week.

Fraud170406A year ago, the 3rd Circuit held in United States v. Banks that the loss enhancement under USSG § 2B1.1(b)(1) – the linchpin of economic crimes sentencing – is limited to actual loss. Relying on the 2019 Supreme Court Kisor v. Wilkie decision, the 3rd applied the ordinary meaning of “loss” to determine that § 2B1.1 includes only what was lost because the word “intended” is only mentioned in the § 2B1.1 commentary. The Circuit held that “the loss enhancement in the Guideline’s application notes impermissibly expands the word ‘loss’ to include both intended loss and actual loss.”

Bloomberg reported that the ruling has sparked a debate on how much deference to give the Sentencing Commission’s interpretation of its own Guidelines, including the loss scale that can dramatically increase the sentencing range in fraud crimes. The Guideline suggests in the commentary using the greater of actual or intended loss when determining sentences. But the 3rd said the USSC lacked authority to expand the meaning of “loss” to include what was intended but did not happen.

“We are getting these absurd results where nonviolent criminals are getting extraordinary sentences,” one defense attorney told Bloomberg.

loss210312Bloomberg said Banks “could significantly reduce prison time for defendants in securities and commodities cases since it is difficult to figure out actual losses in those situations… It could also impact charging decisions, especially in 3rd Circuit territory, where prosecutors may think twice about devoting resources to cases with small actual losses.”

But in the year since Banks was decided, defense attorneys have had limited success using the decision outside of the 3rd Circuit. In December, an Eastern District of _ichigan court in United States v. McKinney sided with the Banks ruling in a case involving a defendant who pleaded guilty to fraud against JPMorgan Chase. The judge reasoned that she didn’t have to defer to the Sentencing Commission because the definition of loss isn’t “genuinely ambiguous.” Later, the 6th Circuit cast some shade on relying on Banks in United States v. Xiaorong You, holding in a trade secrets theft case that “Banks’s attempt to impose a one-size-fits-all definition is not persuasive” and that the Guidelines commentary is entitled to deference.

Two other circuits, the 1st and 4th Circuits, have declined to take a position. In United States v. Limbaugh, the 4th declined to apply F.R.Crim.P. 52(b) “plain error” to an “intended loss” sentence, holding that the Banks holding “is a new and fast-developing area of the law, and as of now, we do not have the kind of robust consensus in other circuits that would allow us to label as “plain” any error committed here.” The 1st Circuit did the same in United States v. Gadson.

The issue is tied up with a 1993 SCOTUS ruling in Stinson v. United States that held Guidelines commentary is authoritative unless it violates the Constitution, violates a federal statute, or is inconsistent with, or a plainly erroneous reading of, the applicable Guideline. The 4th, 6th, 9th, and 11th Circuits all agree with the 3rd’s position that the Supreme Court in Kisor v. Willkie replaced Stinson’s highly deferential standard — to guideline commentary, at least — with a less deferential one.

conspiracy160606However, some other circuit courts have taken the opposite view. The 5th Circuit is the latest, ruling in the en banc United States v. Vargas decision that while the Guidelines are silent on the treatment of conspiracies, its commentary includes them and thus subjects a defendant to increased prison time. In deferring to the commentary, the 5th held that it is bound to follow Stinson, “like night follows day.” Under Stinson, the court went on to explain, the commentary is authoritative unless it is inconsistent with, or a plainly erroneous reading of, the applicable guideline.

Some commentators believe the Supreme Court will need to decide the issue. While SCOTUS has not taken up the issue, it will address Chevron deference this term, and the outcome of that could presage, if not settle, the Banks issue.

Bloomberg Law, Wall Street Fraudsters Rush to Cut Prison Terms With New Ruling (November 1, 2023)

United States v. Banks, 55 F.4th 246 (3d Cir, Nov 30, 2022)

United States v. McKinney, 645 F. Supp. 3d 709 (E.D. Mich. 2022)

United States v. Xiaorong You, 74 F.4th 378 (6th Cir. 2023)

United States v. Limbaugh, No. 21-4449, 2023 U.S. App. LEXIS 317 (4th Cir., Jan. 6, 2023)

United States v. Gadson, 77 F.4th 16 (1st Cir. 2023)

Kisor v. Wilkie, 588 U.S. —, 139 S. Ct. 2400, 204 L. Ed. 2d 841 (2019)

Stinson v. United States, 508 U.S. 36 (1993)

United States v. Vargas, 77 F.3d 673 (5th Cir. 2023) (en banc)

Federalist Society, How Much Should Courts Defer to U.S. Sentencing Guidelines Commentary? (August 9, 2023)

– Thomas L. Root

What To Know In Applying For Criminal History Sentence Reduction – Update for October 31, 2023

Leave a comment

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

RETROACTIVE GUIDELINES BECOME EFFECTIVE – WHAT NOW?

mrexplainer230828Tomorrow, the first Guidelines amendments in five years will become effective, including the two retroactive criminal history Guidelines, the first retroactive guidelines in almost a decade. Although the Sentencing Commission adopted the new compassionate release Guideline – USSG § 1B1.13 – by a 4-3 vote, a Congress preoccupied with Ukraine, government funding, and a House of Representatives paralyzed by lack of a Speaker, was not motivated to use its veto.

I’ve gotten a lot of questions about the two retroactive Guidelines. Here’s a little guidance.

A Guidelines amendment doesn’t help anyone who’s already been sentenced unless it is designated as being retroactive. There haven’t been many over 34 years. If the amendment is retroactive, it will be listed in USSG § 1B1.10(c).

The two retroactive Guidelines are found in Amendment 821. Part A of the amendment cuts “Status Points” – the two points added to criminal history scores when the offense was committed while on probation, parole or supervised release from another crime – by one point for people with seven or more criminal history points and eliminates them altogether for people with six or fewer criminal history points.

There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.

Part B of the Amendment creates a new USSG § 4C1.1 that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors:

• No adjustment under USSG § 3A1.4 (terrorism);

• Defendant did not use violence or threats of violence in the offense;

• The offense did not result in death or serious bodily injury;

• The offense of conviction is not a sex offense;

conditions231031• Defendant did not personally cause substantial financial hardship;

• Defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in the offense;

• The offense is not covered by USSG § 2H1.1 (involving individual rights);

•  Defendant did not receive an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or § 3A1.5 (Serious Human Rights Offense); and

• Defendant did not receive an adjustment under § 3B1.1 (aggravating role) and was not engaged in a continuing criminal enterprise under 21 USC § 848.

People with release dates before February 1, 2024, will not be able to receive a reduction in their sentences.

To get the retroactive Guideline reduction, you file a motion under 18 USC § 3582(c)(2). There’s no exhaustion of administrative remedies – no need to send a copout to the warden – before filing. You simply write a motion and file it.

A motion should first show the court that you are eligible for the reduction. That’s not always a slam dunk. For the status point reduction, if taking off the one or two points you will save does not drop you to a lower Criminal History Category, “status point” retroactivity won’t help you. For the “zero point” reduction, you have to show that you meet the conditions.

Eligibility is a legal question. You are or you aren’t. But once the eligibility is established, it becomes a matter of the judge’s discretion. The court can give you a sentence reduction that cannot be more than the bottom of your new sentencing range. But the judge may decide to give you less than the bottom of the new range or even give you nothing at all. And what the judge decides as far as the amount of reduction you can get is unreviewable.

goodboy200903For that reason, a well-written motion for sentence reduction will not only explain to the court about your history and the offense but also cite post-sentencing reasons – such as a good disciplinary record or a history of programming – that convince the court that the reduction is deserved and consistent with the sentencing factors of 18 USC § 3553(a).

A note on below-Guidelines sentences: Section 1B1.10 suggests to the court that it may grant you a reduction, but “a reduction comparably less than the amended guideline range… may be appropriate.” The Guideline gives the example of someone who was sentenced 20% below his original sentencing range. In that case, 1B1.10 suggests, “a reduction of approximately 20 percent below the minimum term of imprisonment provided by the amended guideline range… would amount to a comparable reduction and may be appropriate.”

Sentencing Law and Policy, Gearing up for new guidelines amendments becoming law and working through criminal history retroactivity (October 25, 2023)

Alan Ellis, How Zero-Point Offender Change Should Work Retroactively (October 6, 2023)

USSC, Materials Relating To The 2023 Criminal History Amendment

– Thomas L. Root

Mr. Explainer’s “How-to” On Applying For Retroactivity – Update for August 28, 2023

Leave a comment

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

RETROACTIVITY – WHAT HAPPENS NOW?

mrexplainer230828Last Friday, I reported on the United States Sentencing Commission’s  August 24 action making two of its Guidelines amendments from last April retroactive. Today, I have asked Mr. Explainer to tell people just how prisoners can go about applying for a shorter sentence.

Over 85,000 Federal Bureau of Prisons inmates have either had status points applied in their Guidelines sentencing calculations or had no criminal history points to begin with.  However, the Sentencing Commission estimated in its May 2023 Impact Analysis that only about 11,500 prisoners will be eligible for a lower sentencing range due to the status-point change and about 7,250 prisoners will be eligible for a lower sentencing range based upon the “zero-point” change.

Who Should File: The Dept of Justice complained to the Commission that regardless of who is eligible for a reduced sentence, most zero-point offenders or those with status points are likely to move for a reduction anyway. This would flood the courts, critics complained (many of whom have predicted 17 of the last three times changes in the law or Guidelines did so).

ineligible230828Still, history suggests that if you aren’t eligible, you should save a stamp. Motions that are dead on arrival only gum up the works for people who have meritorious issues and are already waiting too long for a judicial response.

Are you eligible? First, figure out whether applying zero-point or status-point to your Guidelines would change your sentencing range. This is important: If after you adjust your Guidelines for zero-point or status-point, your sentence is within or below your adjusted sentencing range, you are ineligible. Period. Do not pass “go.”

Example: Mike Methdealer had zero points and was a Crim I. His Guideline sentencing range was 135-168, but his judge gave him a break, sentencing him to 120 months, his mandatory minimum. Applying zero-point, his Guidelines fall to 108-135, but he still has a 120-month mandatory minimum. Mike is not eligible.

Example: Rick Recidivist had six criminal history points, putting him at the top of Category III. Two of those were status points. Take those away, and he would have four points, putting him at the bottom of Crim Category III. Rick, too, is not eligible.

Even worse, Rick was sentenced as a Guidelines career offender. Definitely not eligible.

Example: Sammy Snitch had a guideline sentencing range of 188-235 months. But he rolled on his co-defendants, and the judge gave him a four-level 5K1.1 departure to 121 months. Applying his status-point reduction would drop his range to 168-210 months. Special rules apply to people with 5K1.1 sentences, and he would be eligible to have his 121 month reduced proportionately.

Things are especially tough for zero-point men and women, who must meet all of the conditions listed in new USSC § 4C1.1: (1) no USSG § 3A1.4 terrorism adjustment; (2) no violence or threats of violence; (3) no one got hurt; (4) no sex offense; (5) the defendant did not personally cause “substantial financial hardship” (defined in Application Note 4(F) of the Commentary to USSG § 2B1.1); (6) no gun involved in the offense; (7) the offense did not involve individual rights under USSG § 2H1.1; (8) no USSG §3A1.1 adjustment for a hate crime or vulnerable victim or  USSG §3A1.5 for serious human rights offense; and (9) no adjustment under USSG  §3B1.1 for role in the offense and offense was not a 21 USC § 848 continuing criminal enterprise.

When to File: You can file for the reduction as early as November 1, 2023. However, no court is allowed to let the reduction become effective before February 1, 2024.

How to file: The filing you are making is under 18 USC 3582(c)(2) and USSG 1B1.10. There are two components to your showing. One, you have to prove that you are eligible. Two, you have to convince the judge that you are worthy of the reduction.

A judge has almost complete discretion to grant you the reduction up to the bottom of your adjusted range. You have to sell yourself – especially your post-sentence record – to the court.

Who to Hire: No one can answer this for you. You could prepare and file a motion yourself.  You could hire a lawyer or a writing service, remember that in the past (such as the drugs-minus-two in 2014 and Section 404 crack motions after the First Step Act), many district courts appointed the Federal Public Defender to represent eligible prisoners. Be sure you’re not eligible to get it for free from the FPD before you spend good commissary money on a mouthpiece.

phonescam230828What Not to Do:  Speaking of people willing to take your money, the BOP last week issued a media advisory that a phone scam is going around where callers are identifying themselves as BOP employees to ask you to pay money to secure release to pre-release custody for your loved ones. Presumably, the BOP now takes Apple iTunes cards and Googleplay as well as postal money orders.

You can say a lot of things about the BOP, but it does not call people to demand their personal information or money. For now, you cannot buy $10,000 ankle monitors or use prepaid gift cards to buy people’s way out of BOP custody.

US Sentencing Commission, Public Meeting (August 24, 2023)

US Sentencing Commission, Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment (May 15, 2023)

Sentencing Law and Policy, US Sentencing Commission votes to make its new criminal history amendments retroactive and adopts new policy priorities (August 24, 2023)

Law360, Sentencing Commission Backs Retroactive Cuts For 1st Timers (August 25, 2023)

Forbes, Bureau of Prisons Warns of Scams (August 25, 2023)

– Thomas L. Root

‘Patience, Patience’ on Guidelines Changes, DC Circuit Says – Update for August 4, 2023

Leave a comment

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

DC CIRCUIT IS NOT AN EARLY ADOPTER OF NEW COMPASSIONATE RELEASE STANDARDS

Louis Wilson – convicted 26 years ago of several counts, including killing a federal witness – filed for compassionate release under 18 USC § 3582(c)(1)(A)(i), seeking to cut his life sentence to time served.

Louie argued that the extraordinary and compelling reasons supporting his compassionate release motion included (1) if United States v. Booker and Apprendi v. New Jersey had been decided prior to his sentence, he would have gotten 25 years instead of life because the district court considered additional facts during sentencing not proven to a jury; (2) the national murder sentencing statistics have “trended downward;” and (3) his medical conditions plus his exemplary prison citizenship supported compassionate release.

patience230804Louie argued that the purported intervening changes in law went to his length of time served and should constitute extraordinary and compelling reasons. The district court concluded, however, that time served in prison “does not in and of itself constitute an extraordinary and compelling circumstance.” After considering the 18 U.S.C. § 3553(a) factors, the district court denied Louie’s motion.

Last week, the D.C. Circuit denied Louie’s appeal.

Under D.C. Circuit precedent in United States v. Jenkins, change in law arguments cannot be extraordinary and compelling reasons supporting compassionate release. But, Louie argued, since the D.C. Circuit decided Jenkins, the Sentencing Commission amended the Guidelines (to be effective November 1st absent Congressional veto) regarding what constitutes an extraordinary and compelling reason for release. The proposed guidelines state that district courts may consider a “change in the law” to ‘determine whether the defendant presents an extraordinary and compelling reason’ for release if he has “served at least 10 years [of] an unusually long sentence.”

Without explanation, the Circuit refused to “decide whether Wilson’s contentions would constitute extraordinary and compelling reasons under the not-yet-effective guidelines.”

The lesson is that no one should expect a Circuit to do now what its precedent says it cannot do. Wait until November.

United States v. Wilson, Case No. 21-3074, 2023 U.S. App. LEXIS 18608 (D.C. Cir. July 21, 2023)

– Thomas L. Root

Vacation’s Over, Back to Work – LISA Update for July 31, 2023

Leave a comment

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

OCCASIONALLY (BUT RARELY) I’M RIGHT

I am back from a week in the wilds with three wild grandchildren, a great vacation marred only by the LISA site crashing for five days. Did I remember to publicly thank LISA’s website provider for its alacrity in fixing the problem?

No, I did not forget to My omission was quite deliberate.

Now back to work: I have been predicting for weeks that the US Sentencing Commission will probably make the new Sentencing Guidelines §§4A1.1(e) and 4C1.1 retroactive sometime in August.

Amended §4A1.1(e) abolishes “status points” from Guidelines criminal history, while §4C1.1 reduces the Guidelines offense level for some people with zero criminal history points.

iamright230731Last Thursday, the USSC announced a public meeting will be held on August 24, and that the meeting will include as an agenda item a “possible vote on retroactivity of Parts A and B of the 2023 Criminal History Amendment.”

For the uninitiated, “Parts A and B of the 2023 Criminal History Amendment” are the zero-point and status-point changes we’re talking about.

If the vote is favorable, then people will likely be able to apply for 18 USC § 3582(c)(2)/USSG § 1B1.10 retroactivity at the end of February 2024.

Of course, Congress could veto the proposed amendment. However, half of the 6-month review period for the 2023 amendments has already passed, and Congress is on vacation until the week after Labor Day. With an appropriations bill deadline at the end of September and reams of unfinished business, the chance both the House and the Senate will veto any part of the 2023 Amendments before the November 1 effective date is remote.

The same is probably true for the 6-month review period on retroactivity.

US Sentencing Commission, Public Meeting – August 24, 2023 (July 27, 2023)

– Thomas L. Root

Guideline Amendments Adopted in Contentious USSG Love-fest – Update for April 6, 2023

Leave a comment

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

SENTENCING COMMISSION ADOPTS AMENDMENTS

USSC170511The U.S. Sentencing Commission yesterday adopted proposed amendments to the Federal Sentencing Guidelines for the first time in five years, with the new “compassionate release” guidelines consuming much of the meeting and generating sharp (but collegial) disagreement.

The “compassionate release” Guideline, USSG § 1B1.13, was approved on a 4-3 vote. It updates and expands the criteria for what can qualify as “extraordinary and compelling reasons” to grant compassionate release – the language in 18 USC § 3582(c)(1)(A) – and it will give judges both more discretion and more guidance to determine when a sentence reduction is warranted.

The new categories that could make an inmate eligible for compassionate release include

• if the prisoner is suffering from a medical condition that requires long-term or specialized medical care not being provided by the BOP and without which he or she is at risk of serious deterioration in health or death.

• if the prisoner is housed at a prison affected or at imminent risk of being affected by (an ongoing outbreak of infectious disease or an ongoing public health emergency declared by the appropriate federal, state, or local authority, and due to personal health risk factors and custodial status, he or she is at increased risk of suffering “severe medical complications or death as a result of exposure” to the outbreak.

• if the prisoner’s parent is incapacitated and the prisoner would be the only available caregiver.

• if the prisoner establishes that similar family circumstances exist involving any other immediate family member or someone whose relationship with the prisoner is similar in kind to that of an immediate family member when the prisoner would be the only available caregiver.

• if the prisoner becomes the victim of sexual assault by a corrections officer.

• if a prisoner received an unusually long sentence and has served at least 10 years of the term of imprisonment, changes in the law (other than to the Guidelines) may be considered in determining whether an extraordinary and compelling reason exists, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed.

The amendments also provide that while rehabilitation is not, by itself, an extraordinary and compelling reason, it may be considered in combination with other circumstances.

compassion160208Three of the seven-member Commission disagreed sharply with the “unusually long sentence” amendment. Commissioner Candice C. Wong said, “Today’s amendment allows compassionate release to be the vehicle for applying retroactively the very reductions that Congress has said by statute should not apply retroactively.”

Commissioner Claira Boom Horn, who is a sitting US District Court Judge in Kentucky, observed that “nothing in the First Step Act – literally nothing, not text, not legislative history – indicates any intention on Congress’s part to expand the substantive criteria for granting compassionate release, much less to fundamentally change the nature of compassionate release to encompass for the first time factors other than the defendant’s personal or family circumstances. The Supreme Court tells us that Congress does not hide elephants in mouseholes and it did not do so here.”

Commissioner Claire McCusker Murray said, “The seismic expansion of compassionate release promulgated today not only saddles judges with the task of interpreting a free will catch-all but also ensures a flood of motions, a flood that will then repeat anytime there is a nonretroactive change in the law. For the past several years, while the Commission lacked a quorum to implement the First Step Act, the country has experienced a natural experiment in what happens when judges have no operative guidance as to the criteria they should apply in deciding release motions. The result has been widespread disparities. In Fiscal Year 2022, for example, the most generous circuit granted 35% of compassionate release motions, the most cautious granted only 2.5%. The disparities within circuits and even within courthouses were often just as stark. We fear that with today’s dramatic vague and ultimately unlawful expansion of compassionate release that we… will expect far more of the same.”

Commissioner John Gleeson, a retired US District Court judge and Wall Street law firm partner, disagreed: “[The amendment’s] common sense guidance is fully consistent with separation of powers principles, our authority as the Sentencing Commission, and with the First Step Act. Most importantly, it will ensure that § 3582(c)(1)(A) of Title 18 of the United States Code serves one of the purposes Congress explicitly intended it to serve when that law is enacted almost 40 years ago: to provide a needed transparent judicial second look at unusually long sentences that in fairness should be reduced.”

noteasycongress221212Congress may veto one or more of the Guidelines proposals between now and November 1, 2023. That has only once before, when Congress voted down a guideline lessening the crack/cocaine disparity in 2005. Congress is pretty busy, and both the Senate and House are pretty evenly split politically, but the extent of the disagreement at the Commission gives cause for concern. If Congress does veto, it is unclear whether would focus solely on the “unusually long sentence” subsection of new § 1B1.13, or whether the entire amended Guideline would be jettisoned.

In other action, the Commission had been considering an amendment that prohibited courts from imposing longer sentences based on alleged crimes of which a defendant had been acquitted. Commission Chairman Carleton Reeves, a federal district judge from the Southern District of Mississippi, said the Commission needs more time before making a final determination on the issue.

Reuters reported that Michael P. Heiskell, President-Elect of the National Association of Criminal Defense Lawyers, said he was disappointed by the delay. “Permitting people to be sentenced based on conduct for which a jury has acquitted them is fundamentally unfair because it eviscerates the constitutional right to trial and disrespects the jury’s role,” he said in a statement.

However, the Commission’s delay may rejuvenate the McClinton v. United States petition for certiorari, which the Supreme Court has been sitting on at the suggestion of the Dept of Justice, awaiting Sentencing Commission action on acquitted conduct. A Supreme Court decision that use of acquitted conduct in sentencing is unconstitutional would benefit many more people than would a prospective Guidelines change.

The USSC also adopted a criminal history amendment that eliminates “status points” (sometimes called “recency points”) – additional criminal history points assessed if the defendant committed the current crime within two years of release for a prior crime – and grants a 2-level downward adjustment to a defendant’s offense level if he or she had zero criminal history points and met other criteria.

The Commission also approved an amendment to criminal history commentary advising judges to treat prior marijuana possession offenses more leniently in the criminal history calculus, making downward adjustments for offenses now seen as lawful by many states.

The proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted,” according to a synopsis.

usscretro230406None of the Guidelines changes is retroactive without specific Commission determination that they should be. The USSC yesterday issued a notice that it will consider, pursuant to 18 USC § 3582(c)(2) and 28 USC § 994(u), whether Guidelines changes on “status points” and the “zero criminal history points” adjustment should be retroactive, and ask for public comment on the matter.

Although the Guidelines amendments do not become effective until November, most federal circuits have declared that – while the current § 1B1.13 is not binding on district courts because it is pre-First Step – courts should consider it to express the opinion of an agency expert in sentencing. The amended § 1B1.13 has every bit of the authority that the current non-binding § 1B1.13 has, and it has the additional benefit of being evidence of current Sentencing Commission thought.

USSC, Adopted Amendments (Effective November 1, 2023) (April 5, 2023)

USSC, Issue For Comment On Retroactivity Of Criminal History Amendment (April 5, 2023)

Reuters, U.S. panel votes to expand compassionate release for prisoners (April 5, 2023)

Marijuana Moment, Federal Sentencing Commission Approves New Marijuana Guidelines For Judges To Treat Past Convictions More Leniently (April 5, 2023)

– Thomas L. Root

U.S. Sentencing Commission’s In A Hurry to Get Things Done – Update for March 27, 2023

Leave a comment

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

SENTENCING COMMISSION ROCKET DOCKET

rocket190620Showing that a federal prisoner has an ‘extraordinary and compelling’ reason for grant of compassionate release is critical to getting a sentence reduction grant under 18 USC § 3582(c)(1)(A). That statute also requires that any grant be consistent with “applicable policy statements” of the U.S. Sentencing Commission.

This is where it’s been sticky. The USSC has one policy statement (USSG § 1B1.13) addressing compassionate release, adopted well before the compassionate release statute was changed by the First Step Act. The same month Congress passed First Step (December 2018), the USSC lost its quorum as multiple members’ terms expired. President Trump nominated some new members a few months later, but the Senate did not approve them. That condition lasted until last spring, when President Biden nominated a complete slate of new members.

USSC2300327Without a quorum, the USSC could not modify § 1B1.13 to account for the changes that First Step made in the § 3582(c)(1)(A). Almost all courts responded by holding that the old § 1B1.13 was no longer an “applicable policy statement” and thus didn’t bind the courts. In a way, that was liberating to the people filing compassionate release motions, because courts were freed from § 1B1.13’s restrictive definition of what constituted “extraordinary and compelling” reasons.

But without a USSC policy statement moderating district court responses, compassionate release grants since 2019 have been characterized by wide disparity. In Oregon, for instance, about 62% of compassionate release filings have been granted. In the Middle District of Georgia, on the other hand, only about 1.5% have been granted.

The new USSC said last its top priority was to amend § 1B1.13, and in January, the Commission issued a draft § 1B1.13 for public comment that contained some very prisoner-friendly proposals and options. The proposed change was part of an extensive set of draft Guidelines amendments that spanned more than a hundred pages of text. The public comment period ended two weeks ago, with over 1,600 pages of comments filed on the compassionate release proposal alone.

The USSC usually rolls out its proposal Guidelines amendments by May 1st. Under 28 USC § 994(p), the amendments go to Congress, which then has 180 days to reject them. If Congress does nothing (which is almost always the case), the changes become effective.

Iminahurry230327But this new USSC is in a hurry to get things done. Last week, the Commission announced an April 5 meeting at which the final § 1B1.13 (and all of the other draft proposed amendments) will be adopted.

If the amendment package goes to Congress that same day, they could become effective as early as Monday, Oct 2nd.

USSC, Public Meeting – April 5, 2023 (March 24, 2023)

– Thomas L. Root

New Day Dawning for Compassionate Release? – Update for January 17, 2023

Leave a comment

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

SENTENCING COMMISSION ISSUES DRAFT COMPASSIONATE RELEASE AMENDMENTS

USSCvanwinkle230117For the first time in five years, the U.S. Sentencing Commission last week issued draft Guidelines amendments that – after public comment and a 6-month Congressional review period – will become effective in November.

The USSC’s draft amendments cover everything from the drug safety valve to extra points off for defendants with a zero criminal history score to tougher guideline numbers for gun straw purchasers. But these draft changes are of lesser interest to prisoners because nothing the Commission changes in the guidelines is retroactive unless the USSC goes through a separate amendment process to make it so.

The last time that happened was the “drug-minus-two” change in 2014. Whether any of the sentencing changes the USSC issued in draft form last week will ever make the retroactivity cut is not yet clear.

The compassionate release policy statement that the USSC rolled out, however, will have applicability for people already serving a sentence. The Guidelines applied at sentencing have been advisory for the past 18 years, but the Commission’s compassionate release policy, USSG § 1B1.13, is not: under 18 USC § 3582(c)(1)(A) – the  “compassionate release” provision of the sentencing statute – a district court must ensure any sentence reduction decision “is consistent with applicable policy statements issued by the Sentencing Commission.”
compassionlimit230117The existing compassionate release policy was written before the First Step Act passed, for an era in which only the Bureau of Prisons could bring a compassionate release motion on behalf of an inmate. Since First Step passed, most (but not all) circuit courts have ruled that § 1B1.13 is not binding because it had not been amended to include First Step changes. While that freed district courts to grant compassionate release in circumstances other than the few listed in the old § 1B1.13, it wasn’t all good.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates,” US District Court Judge Carlton W. Reeves, Commission chairman, said at last week’s USSC meeting. “It is my sincere hope that our work… brings greater clarity to the federal courts and more uniform application of compassionate release across the country.”

According to the USSC, people in Oregon had a 62% chance of getting a compassionate release grant. People in the Middle District of Georgia had a 1.5% chance. Giving federal judges the freedom to define for themselves what justifies a sentence reduction is a great thing when it frees the jurists from unreasonably strict limitations. It’s not so great when defendants with similar histories and offenses are treated dramatically differently due to an accident of geography.

The draft § 1B1.13 amendments propose additions to circumstances justifying compassionate release that include “medical conditions that require long-term or specialized medical care, without which the defendant is at risk of serious deterioration in health or death, that are not being provided in a timely or adequate manner; risk of being affected by a disease outbreak in prison for which the defendant is at increased risk of suffering severe medical complications or death; the incapacitation of the defendant’s parent when the defendant would be the only available caregiver; the defendant has been the victim of sexual assault or physical committed by a BOP employee or contractor; or “the defendant is serving a sentence that is inequitable in light of changes in the law.”

compassion160208The proposal also suggests a “catch-all” provision that “the defendant presents an extraordinary and compelling reason other than, or in combination with” the other circumstances the Commission has proposed for the beefed-up  § 1B1.13. 

The USSC draft proposals also include a provision to amend § 1B1.3 the “relevant conduct’ provision that tends to run up sentencing ranges, “to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction.” As noted, no one at this point knows whether this might become retroactive in the future.

Reuters, U.S. panel proposes limiting sentencing of defendants for acquitted conduct (January 12, 2023)

USSC, US Sentencing Commission Seeks Comment on Proposed Revisions to Compassionate Release, Increase in Firearms Penalties (January 12, 2023)

USSC, Proposed Amendments to the Sentencing Guidelines (Preliminary) (January 12, 2023)

Sentencing Law and Policy, US Sentencing Commissions publishes proposed guideline amendments and issues for comment (January 12, 2023)

– Thomas L. Root

President Packs USSC With Some Good Picks – Update for May 12, 2022

Leave a comment

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

SENTENCING COMMISSION DROUGHT IS LIFTING

noquorum191016President Biden yesterday nominated a bipartisan slate of seven candidates to serve as commissioners on the U.S. Sentencing Commission. If confirmed, the nominees will revitalize the USSC, giving it its first quorum in almost four years.

The list includes U.S. District Judge Carlton W. Reeves (Southern District of Mississippi). If confirmed by the Senate, he will be the first black jurist to chair the 33-year-old commission’s history.

By statute, the Commission must be bipartisan and consist of at least three federal judges and no more than four members of each political party.

Biden’s planned nominees include three active judges and four attorneys. Of those nominees, two have experience as public defenders. Nominees also include

• Laura Mate, a former assistant federal public defender in the Western District of Washington, serves as Sentencing Resource Counsel for the Federal Public and Community Defenders in Arizona;

• Judge Luis Felipe Restrepo, appointed by President Obama to serve on the US Court of Appeals for the Third Circuit and a former assistant federal public defender in the Eastern District of Pennsylvania;

• Claire McCusker Murray, formerly principal deputy associate attorney general in the Dept. of Justice during the Trump Administration;

• Judge Claria Horn Boom, appointed by President Trump to the U.S. District Courts for both the Eastern and Western Districts of Kentucky;

• Former U.S. District Judge John Gleeson (EDNY), a partner at Debevoise and Plimpton LLP, who enjoys close to rock-star status as a forward-thinking sentence reformer;

• Candice Wong, Assistant United States Attorney and Chief of the Violence Reduction and Trafficking Offenses Section in the United States Attorney’s Office for the District of Columbia.

USSC170511The Sentencing Commission has lacked a full slate of commissioners for the entirety of the Trump Administration, and has not had a quorum since the First Step Act passed in December 2018. That is why no guideline has been amended since the November 2018 amendments went into force.

Trump nominated four commissioners in August 2020, two of whom – Judges Restrepo and Boom – were renominated yesterday. Their nominations expired when the Senate did not act on them prior to the end of the 116th Congress in January 2021.

The Commission has a stack of work waiting for its attention, chief among the issues being compassionate release. Last November, the sole remaining member of the Commission at the time, Senior Judge Charles Breyer (N.D. Cal.) complained to Reuters that the lack of quorum meant the Commission could not provide guidance on how to implement compassionate release, creating a “vacuum” in which judges inconsistently decide whether inmates under the measure can secure a sentence reduction under 18 USC § 3582(c)(1)(A)(i) amid the COVID-19 pandemic.

“Some people were granted compassionate release for reasons that other judges found insufficient,” he said. “There was no standard. That’s a problem when you try to implement a policy on a nationwide basis.” The Commission’s outdated Guideline 1B1.13, ignored by most circuits but used as a bludgeon by others, was perhaps the primary mischief-maker, but with no quorum, the USSC has been powerless to fix things.

Don’t expect immediate miracles. The Commission normally works on a 12-month cycle, with proposed topics for amendments to the Sentencing Guidelines issued late in the year, followed by the actual amendments early in the following year, and a final slate of amendments by May 1. Under the law, the amendments take effect on November 1, unless Congress votes to veto one or all of them.

This means that the most anyone can hope for would be amendments to take effect on November 1, 2023.

progress220512Still, the slate of new commissioners would be the most defendant-friendly bunch to ever run the USSC. Ohio State University law professor Doug Berman wrote in his Sentencing Law and Policy blog yesterday, “Because these selections have surely been made in consultation with Senate leadership, I am reasonably hopeful that hearings and a confirmation of these nominees could proceed swiftly. (But that may be wishful thinking, as was my thinking that these needed nominees would come a lot sooner.) There is lots of work ahead for these nominees (and lots of blog posts to follow about them and their likely agenda), but for now I will be content with just a ‘Huzzah!’”

He’s right.  Its progress, however slow in coming.

Bloomberg Law, Biden Names Seven to Restock US Sentencing Commission (May 11, 2022)

The White House, President Biden Nominates Bipartisan Slate for the United States Sentencing Commission (May 11, 2022)

The White House, President Donald J. Trump Announces Intent to Nominate and Appoint Individuals to Key Administration Posts (August 12, 2021)

Reuters, U.S. sentencing panel’s last member Breyer urges Biden to revive commission (November 11, 2021)

Sentencing Law and Policy, Prez Biden finally announces a full slate of nominees to the US Sentencing Commission (May 11, 2022)

– Thomas L. Root