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Federal Sentencing Guidelines Undergo Substantial Amendments

by David M. Reutter

The United States Sentencing Commission (“Commission”) adopted nine amendments to the Federal Sentencing Guidelines (“Guidelines”) that became effective on November 1, 2023. It’s the first action by the Commission since it lost a quorum in early 2019. After it regained a quorum in 2022, the Commission sought to update the Guidelines in accordance with changes in the law and developments affecting criminal sentencing. This article summarizes each amendment, citing each according to its Guidelines amendment number.

Reduction of Sentences

Amendment #814 implements a change mandated by the First Step Act of 2018. It amended 18 U.S.C. § 3582(c)(1)(A) to authorize courts to grant a motion for a sentence reduction upon a defendant’s own motion. Previously, a court was authorized to do so only upon the motion of the Director of the Bureau of Prisons (“BOP”). Congress amended the law for the express purpose of “increasing the use” of sentence reduction motions under § 3582(c)(1)(A).

Absent a quorum, the Commission was unable to change the Guidelines to reflect this act of Congress. The courts, however, acted to implement First Act provisions. “Motions under § 3582(c)(1)(A) reached their highest filing levels in the second half of 2020—correlating with developments in the COVID-19 pandemic. Their prevalence has since declined but remains higher than before the pandemic due to defendant-filed motions newly authorized by the First Step Act,” states a Commission Brief. “In FY 2022, the overall grant rate was 12.2%, but there was substantial variation in grant rates among the circuits (ranging from 2.5% to 35%).”

Section 3582(c)(1)(A) authorizes a court to reduce a defendant’s term of imprisonment if “extraordinary and compelling reasons” warrant a reduction and “such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Congress directed the Commission to describe the circumstances under which this provision would apply.

“For more than 30 years, reductions pursuant to § 3582(c)(1)(A) could be granted only upon the motion of the BOP. BOP filed such motions extremely rarely—the number of defendants receiving relief averaged two dozen per year—and for the most part limited its motions to cases involving inmates who were expected to die within a year or were profoundly and irremediably incapacitated,” the Commission stated. “Sentence reductions under § 3582(c)(1)(A) thus came to be known as ‘compassionate release,’ though that phrase appears nowhere in the Sentencing Reform Act of 1984 and sentence reductions that do not result in immediate release were authorized by the law.” The Commission in 2007 provided guidance stating “that ‘extraordinary and compelling reasons’ can be based on (a) the medical condition of the defendant, (b) the age of the defendant, (c) the defendant’s family circumstances, and (d) reasons other than, or in combination with, those three specified ones.”

The amendment expands the list of “extraordinary and compelling reasons” in five ways to better account for the plain language of § 3582(c)(1)(A) and its legislative history, to reflect the reasons relied upon by many courts after passage of the First Step Act in the absence of a binding policy statement, and to account for recent experiences—including those pertaining to the pandemic:”

adds “Medical Circumstances” subcategories;

modifies the “Family Circumstances” category;

adds a “Victim of Abuse” category;

revises the “Other Reasons” category; and

adds an “Unusually Long Sentences” category, permitting consideration of non-retroactive changes in law in a narrow set of circumstances.

The medical circumstances create two subcategories and apply when a defendant is “suffering from a medical condition that requires long-term or specialized medical care that is not being provided and who, without that care, ‘is at risk of serious deterioration in health or death,’” the Commission stated. “The second applies when a defendant, due to personal health risk factors and custodial status, is at increased risk of suffering severe medical complications or death as a result of exposure to an ongoing outbreak of infectious disease or public health emergency. The amendment incorporates several factors courts considered during the COVID-19 pandemic related to the defendant’s individual health circumstances, the level of risk at the defendant’s facility, and the ability to adequately mitigate the defendant’s individualized risk. The public health emergency prong requires that the emergency be declared by the appropriate governmental authority.”

The second modification revises “Family Circumstances” in three ways. “First, it expands the existing provision relating to the death or incapacitation of the caregiver of a defendant’s minor child to include a child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition. This expansion reflects the Commission’s determination that providing care for a non-minor child with severe caretaking needs presents a circumstance similar to providing care for a minor child, as some courts have recognized.”

Next, the amendment “adds a new provision for cases in which a defendant’s parent is incapacitated and the defendant would be the only available caregiver. Other than the relationships specified in the current policy statement, a parent has been the family member most often identified as needing care by courts granting sentence reductions under § 3582(c)(1)(A).”

“The incapacitation of the defendant’s parent when the defendant would be the only available caregiver for the parent” or that involves “any other immediate family member or an individual whose relationship with the defendant is similar in kind to that of an immediate family member, when the defendant would be the only available caregiver for such family member or individual. For purposes of this provision, ‘immediate family member’ refers to any of the individuals [previously] listed [in the section] as well as a grandchild, grandparent, or sibling of the defendant.”

“This provision recognizes the diversity of family structures in America, and that caretaking needs within all of those family structures may give rise to equally extraordinary and compelling circumstances,” the Commission said.

The “Victim of Abuse” category “applies if a defendant has suffered sexual or physical abuse that was committed by or at the direction of a correctional officer, an employee or contractor of the BOP, or any other individual having custody or control over the defendant.” It applies where the defendant “was a victim of either (a) sexual abuse involving a ‘sexual act,’ as defined in 18 U.S.C. § 2246(2) (including the conduct described in 18 U.S.C. § 2246(2)(D) regardless of the age of the victim); or (b) physical abuse resulting in ‘serious bodily injury,’ as defined at §1B1.1 [of the Guidelines], while in custody serving the term of imprisonment sought to be reduced.” This amendment is in new subsection (b)(4) and “provides that the misconduct must be established by a conviction in a criminal case, a finding or admission of liability in a civil case, or a finding in an administrative proceeding, unless the defendant establishes that such proceedings are unduly delayed or the defendant is in imminent danger.”

“Apart from the specified extraordinary and compelling reasons, the amendment retains the ‘Other Reasons’ catchall ground currently found in Application Note 1(D).” The Commission considered but specifically rejected a requirement that “Other Reasons” be similar in nature and consequence to the specified reasons. Rather, they need be similar only in gravity, a requirement that inheres in the statutory requirement that they present extraordinary and compelling reasons for a sentence reduction.

Finally, the “Unusually Long Sentence” provision “permits non-retroactive changes in law (other than non-retroactive amendments to the Guidelines Manual) to be considered extraordinary and compelling reasons warranting a sentence reduction, but only in narrowly circumscribed circumstances,” according to the Commission. “Specifically, where (a) the defendant is serving an unusually long sentence; (b) the defendant has served at least ten years of the sentence; and (c) an intervening change in the law has produced a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, the change in law can qualify as an extraordinary and compelling reason after the court has fully considered the defendant’s individualized circumstances.”

This final change resolves a circuit split. “The amendment agrees with the circuits that authorize a district court to consider nonretroactive changes in the law as extraordinary and compelling circumstances warranting a sentence reduction but adopts a tailored approach that narrowly limits that principle.”

Crime Legislation

Amendment #815separately addresses the First Step Act and Bipartisan Safer Communities Act. This multi-part amendment responds to the following recently enacted legislation largely by amending Appendix A (Statutory Index) to the Guidelines to reference new offenses established by the Acts:

  • FDA Reauthorization Act of 2017. This Act created “a new offense for counterfeit drugs at 21 U.S.C. § 333(b)(8) … which provides that the statutory maximum term of imprisonment is ten years for a violation of 21 U.S.C. § 331(i)(3) (Prohibited acts [under the Federal Food, Drug, and Cosmetic Act]). Subsection 331(i)(3) prohibits causing a drug to be counterfeited, or making, selling, dispensing, or holding for sale or dispensing, a counterfeit drug. The Commission determined that § 2N2.1 is the most appropriate guideline to which to reference this offense because § 2N2.1 covers similar penalty provisions at section 333.”
  • Allow States and Victims to Fight Online Sex Trafficking Act. It “added a new offense at 18 U.S.C. § 2421A(a) (Promotion or facilitation of prostitution and reckless disregard of sex trafficking) which prohibits owning, managing, or operating an interactive computer service with the intent to promote or facilitate prostitution. Section 2421A has a statutory maximum term of imprisonment of ten years. The Act included an aggravated offense at subsection 2421A(b)(2) if the offender commits an offense under subsection 2421A(a) while acting in reckless disregard of the fact that such conduct contributed to sex trafficking in violation of 18 U.S.C. § 1591(a) (Sex trafficking of children or by force, fraud, or coercion). Offenses under § 1591(a) that involve force, fraud, coercion, or minors have statutory mandatory minimum terms of imprisonment of at least ten years and statutory maximum terms of imprisonment of life,” the Commission said.

“Offenses under subsection 2421A(b)(2) have a 25-year statutory maximum term of imprisonment to reflect the serious nature of the sex trafficking conduct in violation of § 1591(a). To reflect the statutory maximum term of imprisonment at subsection 2421A(b)(2), the amendment amends the 4-level enhancement at § 2G1.1(b)(1)(B) and adds a new 4-level enhancement at § 2G1.3(b)(4)(B) that apply if the offense of conviction is 18 U.S.C. § 2421A(b)(2). The amendment also amends § 2G1.3(b)(3) to provide that § 2G1.3(b)(3)(B) shall not apply if the offense of conviction is 18 U.S.C. § 2421A because the use of a computer is already accounted for in the base offense level.”

  • FAA Reauthorization Act of 2018. “The new offense at 18 U.S.C. § 39B (Unsafe operation of unmanned aircraft) is referenced to § 2A5.2 (Interference with Flight Crew Member or Flight Attendant; Interference with Dispatch, Navigation, Operation, or Maintenance of Mass Transportation Vehicle) and §2X5.2 (Class A Misdemeanors (Not Covered by Another Specific Offense Guideline)). Section 39B prohibits the knowing or reckless unsafe operation of drones that interfere with the safe operation of an aircraft carrying one or more persons or operated in close proximity to an airport runway. Section 39B has a statutory maximum term of imprisonment of one year. The statutory maximum term of imprisonment for reckless violations that cause serious bodily injury or death is ten years, and for knowing violations that cause serious bodily injury or death is any term of years or life. The Commission determined that § 2A5.2 is the most appropriate guideline to which to reference felony violations of § 39B because it covers conduct interfering with the operation of aircraft. Additionally, providing a reference to § 2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.”

“The FAA Reauthorization Act also added a new offense at 18 U.S.C. § 40A (Operation of unauthorized unmanned aircraft over wildfires) which is referenced in Appendix A to § 2A2.4 (Obstructing or Impeding Officers). Section 40A prohibits operating a drone in a manner that interferes with wildfire suppression or with law enforcement or emergency response efforts related to wildfire suppression. Section 40A has a statutory maximum term of imprisonment of two years. The Commission determined that §2A2.4 is the most appropriate guideline to which to reference this offense because it covers conduct involving interfering with and obstructing or impeding officers.”

  • SUPPORT for Patients and Communities Act. It created “a new offense at 18 U.S.C. § 220 (Illegal remunerations for referrals to recovery homes, clinical treatment facilities, and laboratories) to §§ 2B1.1 (Theft, Property Destruction, and Fraud) and 2B4.1 (Bribery in Procurement of Bank Loan and Other Commercial Bribery) in response to the Substance Use-Disorder Prevention that Promotes Opioid Recovery and Treatment for Patients and Communities Act.”

“Section 220 prohibits soliciting, receiving, paying, or offering any remuneration, including kickbacks, bribes, or rebates, for referring patients to a facility covered by a health care benefit program. Section 220 has a statutory maximum term of imprisonment of ten years. The Commission determined that §§ 2B1.1 and 2B4.1 are the most appropriate guidelines to which to reference this offense because both guidelines cover conduct involving kickbacks and bribery.”

  • Amy, Vicky, and Andy Child Pornography Victim Assistance Act. It created “a new offense at 18 U.S.C. § 2259(d) (Mandatory restitution [for child pornography victims]) to § 2X5.2 in response to the Amy, Vicky, and Andy Child Pornography Victim Assistance Act, Pub. L. 115–299 (Dec. 7, 2018). Subsection 2259(d) prohibits attorneys from charging fees in excess of 15 percent when representing a child pornography victim who receives ‘defined monetary assistance’ from the Child Pornography Victims Reserve and provides for a statutory maximum term of imprisonment of one year. Providing a reference to § 2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.”
  • Foundations for Evidence-Based Policymaking Act. It created “a new offense at 44 U.S.C. § 3572 (Confidential information protection) to § 2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information) in response to the Confidential Information Protection and Statistical Efficiency Act, part of the Foundations for Evidence-Based Policymaking Act of 2018, Pub. L. 115–435 (Jan. 14, 2019). Section 3572 prohibits the unauthorized disclosure of information collected by an agency under a pledge of confidentiality for exclusively statistical purposes or using the information for other than statistical purposes. Section 3572 has a statutory maximum term of imprisonment of five years. The Commission determined that §2H3.1 is the most appropriate guideline to which to reference this offense because it covers conduct involving the unauthorized disclosure of information.”
  • National Defense Authorization Act for Fiscal Year 2020. It added “a new offense at 10 U.S.C. § 2733a (Armed Forces; Medical malpractice claims by members of the uniformed services) to § 2X5.2 in response to the National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116–92 (Dec. 20, 2019). Section 2733a prohibits attorneys from charging fees in excess of 20 percent when representing a member of the uniformed services who receives a payment under § 2733a for medical malpractice caused by a health care provider of the Department of Defense. Section 2733a has a statutory maximum term of imprisonment of one year. Providing a reference to § 2X5.2 is consistent with Commission practice relating to new misdemeanor offenses.”
  • Representative Payee Fraud Prevention Act. It created “two new offenses at 5 U.S.C. §§ 8345a (Government Organization and Employees; Embezzlement or Conversion of Payments) and 8466a (Embezzlement or Conversion of Payments) to § 2B1.1 in response to the Representative Payee Fraud Prevention Act of 2019, Pub. L. 116–126 (Mar. 18, 2020). Sections 8345a and 8466a prohibit representative payees of minors or other individuals under a legal disability from embezzling or converting retirement payments under the Civil Service Retirement System or the Federal Employees’ Retirement System. The statutory maximum term of imprisonment for both sections is five years. The Commission determined that § 2B1.1 is the most appropriate guideline to which to reference these offenses because it covers conduct involving similar financial fraud.”
  • Stop Student Debt Relief Scams Act. It added “a new offense at 20 U.S.C. § 1097(e) (Education; Student Assistance Programs; Criminal Penalties) to § 2B1.1 in response to the Stop Student Debt Relief Scams Act of 2019, Pub. L. 116–251 (Dec. 22, 2020). Subsection 1097(e) prohibits the unauthorized use of an access device relating to student assistance programs issued to another or obtained by fraud to access the information technology systems of the Department of Education for commercial advantage or private financial gain. Subsection 1097(e) has a statutory maximum term of imprisonment of five years. The Commission determined that § 2B1.1 is the most appropriate guideline to which to reference this offense because § 2B1.1 covers other § 1097 offenses prohibiting embezzlement, fraud and false statements involved in student assistance programs.”
  • Protecting Lawful Streaming Act. It created “a new offense at 18 U.S.C. § 2319C (Illicit digital transmission services) to § 2B5.3 (Criminal Infringement of Copyright or Trademark) in response to the Protecting Lawful Streaming Act, part of the 2021 Consolidated Appropriations Act, Pub. L. 116–260 (Dec. 27, 2020). Section 2319C prohibits publicly offering or providing digital transmission services designed to provide the unauthorized transmission of copyrighted works, including pre-release works being prepared for commercial public performance, and provides for a statutory maximum term of imprisonment of three years. The statutory maximum term of imprisonment is five years if the offense involved one or more pre-release works, and for a second or subsequent violation of section 2319C, the statutory maximum term of imprisonment is ten years. The Commission determined that § 2B5.3 is the most appropriate guideline to which to reference this offense because it covers conduct involving criminal copyright infringement including pre-release works.”
  • William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021. It created “multiple new offenses at 31 U.S.C. §§ 5335 (Money and Finance; Concealment of Source of Assets in Monetary Transactions) and 5336 (Beneficial Ownership Information Reporting Requirements) to § 2S1.3 (Structuring Transactions to Evade Reporting Requirement; Failure to Report Cash or Monetary Transactions; Failure to File Currency and Monetary Instruments Report).”

“Subsection 5335(b) prohibits concealing, falsifying, or misrepresenting a material fact from a financial institution about the ownership or control of certain assets over $1,000,000 if the person or entity controlling the assets is a certain foreign figure or associate. Subsection 5335(c) prohibits concealing, falsifying, or misrepresenting a material fact, to or from a financial institution, about the source of funds in monetary transactions involving ‘primary money laundering concerns’ and that violate the prohibitions prescribed in § 5318A(b)(5). Both §§ 5335(b) and 5335(c) have a statutory maximum term of imprisonment of ten years.”

“Subsection 5336(h)(1) prohibits willfully providing false or fraudulent beneficial ownership information to the Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) in accordance with the reporting requirements in § 5336(b). Subsection 5336(h)(1) has a statutory maximum term of imprisonment of two years.”

“Subsection 5336(c)(4) prohibits employees and officers of any requesting agency from violating the protocols established by the Secretary of the Treasury or the unauthorized disclosure or use of the beneficial ownership information submitted to FinCEN.”

“Subsection 5336(h)(2) prohibits any person from knowingly disclosing or using beneficial ownership information obtained through a report submitted to, or through a disclosure made by, FinCEN, without authorization. Both subsections 5336(c)(4) and 5336(h)(2) have a statutory maximum term of imprisonment of five years. The statutory maximum term of imprisonment for a violation of subsection 5336(c)(4) or 5336(h)(2) is ten years if the offense was committed while violating another law of the United States or as part of a pattern of certain unlawful activities.”

“The Commission determined that § 2S1.3 is the most appropriate guideline to which to reference these new offenses because it covers similar conduct involving structuring financial transactions and requiring the filing of a Currency Transaction Report regarding payment, receipt, or transfer of United States coins or currency.”

Sexual Abuse Offenses

Amendment #816, a multi-part amendment, responds to statutory changes provided in division W, title XII, of the Violence Against Women Act Reauthorization Act. It creates “the new offense created at 18 U.S.C. § 250 (Penalties for Civil Rights Offenses Involving Sexual Misconduct) to § 2H1.1 (Offenses Involving Individual Rights). New § 250 criminalizes engaging in or causing another to engage in sexual misconduct while committing any civil rights offense under chapter 13 (Civil Rights) of title 18, U.S. Code, or 42 U.S.C. § 3631 (Fair Housing [violations]). Section 250 delineates different degrees of prohibited sexual misconduct, including aggravated sexual abuse as defined in 18 U.S.C. § 2241 (Aggravated Sexual Abuse), sexual abuse as defined in 18 U.S.C. § 2242 (Sexual Abuse), a sexual act not amounting to aggravated sexual abuse or sexual abuse, and sexual contact, as defined in 18 U.S.C. § 2244 (Abusive Sexual Contact). The statutory maximum term of imprisonment for a violation of § 250 ranges from two years to any term of years or life, depending on the sexual conduct involved in the offense.”

“The Commission determined that § 2H1.1 is the most appropriate guideline to which to reference this new offense. Other similar offenses are referenced to this guideline. In addition, the Commission concluded that the alternative base offense levels provided in § 2H1.1 effectively address both the broad array of conduct criminalized under this new statute and the varying statutory maximum terms of imprisonment applicable to such conduct.”

“Second, the amendment amends Appendix A to reference new subsection (c) at 18 U.S.C. § 2243 (Sexual Abuse of a Minor, a Ward, or an Individual in Federal Custody) to § 2A3.3 and makes a conforming change to § 2A3.3’s title. The new subsection at 18 U.S.C. § 2243 prohibits law enforcement officers from knowingly engaging in a sexual act with an individual under arrest or supervision, in detention, or in federal custody. The Commission determined § 2A3.3 is the most appropriate guideline to which to reference the new offense because it covers a similar offense at 18 U.S.C. § 2243(b) prohibiting anyone in a federal prison, institution, or facility from knowingly engaging in a sexual act with a ward, defined as an inmate or other person in official detention and under the custodial, supervisory, or disciplinary authority of the person engaging in the act. Subsection 2243(b) also has the same 15-year statutory maximum term of imprisonment, and a reference to this guideline will result in similar penalties for both subsections of § 2243.”

“Finally, the amendment increases the base offense level at § 2A3.3 for offenses involving the sexual abuse of a ward or an individual in federal custody from 14 to 18,” the Commission said. “In promulgating the amendment, the Commission was informed by both the rate and extent of above-range sentences in these cases. While the average guideline minimum in fiscal years 2018 through 2022 was 17 months (median 12 months), the average sentence imposed was more than double, at 35 months (median 15 months).”

“The Commission also concluded that an increased guideline range for § 2A3.3 offenses would be more proportional to the guideline range at § 2A3.2 (Criminal Sexual Abuse of a Minor Under the Age of Sixteen Years (Statutory Rape) or Attempt to Commit Such Acts) for the sexual abuse of minors over the age of 12 and under the age of 16 years, conduct prohibited by 18 U.S.C. § 2243(a) with the same 15-year statutory maximum term of imprisonment as subsections 2243(b) and 2243(c). Section 2A3.2 has a base offense level 18 and a 4-level enhancement if the victim is in the care, custody, or supervisory control of the defendant.”

“Consistent with this approach, the amendment also amends § 2A3.3 to include the same cross reference currently provided for in § 2A3.2 in order to ensure proportional guideline ranges for all § 2243 offenses when the offense involved aggravating sexual conduct. The new cross reference sends cases to § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) if the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse (as defined in 18 U.S.C. § 2241 or § 2242), and further directs that § 2A3.1 shall apply if the victim had not attained the age of 12 years, regardless of the ‘consent’ of the victim.”

Safety Valve Provision

Amendment #817 implements the provision of the First Step Act expanding the applicability of the safety valve provision by amending § 5C1.2 and its corresponding commentary to reflect the broader class of defendants who are eligible for safety valve relief under the Act.

This two-part amendment revises § 5C1.2 (Limitation on Applicability of Statutory Minimum Sentences in Certain Cases) and subsections (a)(1) and (a)(3) of §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses; Attempt or Conspiracy) in response to the First Step Act.

That Act amended the eligibility criteria of the “safety valve” provision at 18 U.S.C. § 3553(f) and the enhanced penalty provisions for certain drug trafficking defendants at 21 U.S.C. §§ 841(b) and 960(b). The amendment primarily revises § 5C1.2 to conform it to the statutory safety valve, as amended by the First Step Act. In addition, the amendment revises subsections (a)(1) and (a)(3) of § 2D1.1 to make the guideline’s reference to the type of prior offenses that trigger enhanced mandatory minimum penalties consistent with the amended statutory provisions.

Congress directed the Commission to promulgate or amend guidelines and policy statements to “carry out the purposes of [§ 3553(f)].” Congress also directed that, “[i]n the case of a defendant for whom the statutorily required minimum sentence is 5 years, such guidelines and amendments to guidelines … shall call for a guideline range in which the lowest term of imprisonment is at least 24 months.”

“[T]he statutory safety valve applied only to offenses under 21 U.S.C. §§ 841, 844, 846, 960, and 963, and to defendants who, among other things, had not more than one criminal history point, as determined under the guidelines. The First Step Act amended § 3553(f)(1) to expand eligibility for the safety valve in two ways. First, the Act extended applicability of the safety valve to maritime cases (adding 46 U.S.C. §§ 70503 and 70506). Second, the act broadened the criminal history eligibility criteria to include defendants who do not have: (1) ‘more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines’; (2) a ‘prior 3-point offense, as determined under the sentencing guidelines’; and (3) a ‘prior 2-point violent offense, as determined under the sentencing guidelines.’”

The operation of the word “and” connecting subsections (A) through (C) in section 3553(f)(1)’s expanded criminal history provision is the subject of an evolving circuit conflict that the Supreme Court heard during its 2023-fall term.

Fake Pills

Amendment #818 “revises subsection (b)(13) of § 2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to add a new subparagraph (B) with an alternative 2-level enhancement for offenses where the defendant represented or marketed as a legitimately manufactured drug another mixture or substance containing fentanyl or a fentanyl analogue, and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug. The new subparagraph (B) refers to 21 U.S.C. § 321(g)(1) to define the term ‘drug.’”

“In October 2022, the DEA wrote to the U.S. Sentencing Commission about the proliferation of ‘fake pills’ (i.e., illicitly manufactured pills represented or marketed as legitimate pharmaceutical pills) containing fentanyl or fentanyl analogue,” the Committee Brief stated. “According to the DEA, these fake pills resemble legitimately manufactured pharmaceutical pills (such as OxyContin, Xanax, and Adderall) but can result in sudden death or poisoning due to the unknown presence and quantities of dangerous substances, such as fentanyl and fentanyl analogues.”

“Commission data also demonstrate that the number of federal fentanyl and fentanyl analogue cases have dramatically increased since the initial promulgation of § 2D1.1(b)(13) in 2018.”

“The amendment adds a 2-level enhancement at § 2D1.1(b)(13) for cases where the defendant represented or marketed as a legitimately manufactured drug another mixture or substance containing fentanyl (Nphenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug.”

“The new alternative 2-level enhancement makes clear that the government bears the burden to prove by a preponderance of the evidence that the enhancement applies based on the subjective belief and deliberate action of the defendant committing the offense.”

Firearms, Organized Crime, and Mitigating Circumstances

Amendment #819 “responds to the Bipartisan Safer Communities Act, which directs the Commission to increase certain firearms penalties (e.g., straw purchases, trafficking in firearms, organized crime affiliation),” according to the Commission.

“The amendment makes two changes to account for the new offenses at 18 U.S.C. §§ 932 and 933 established by the Act. First, the amendment amends Appendix A (Statutory Index) to reference the new offenses to § 2K2.1. Section 12004(a)(1) of the Act makes it unlawful to engage in straw purchasing of firearms (18 U.S.C. § 932) or trafficking in firearms (18 U.S.C. § 933). Sections 932 and 933 both carry statutory maximum sentences of 15 years of imprisonment. 18 U.S.C. §§ 932(c)(1), 933(b). The statutory maximum in § 932 increases to 25 years where the defendant has reasonable cause to believe the firearm would be used to commit a felony or certain other offenses.”

The amendment “sets the § 2K2.1 base offense level to account for these new offenses. The amendment expands the specific offense characteristic at (b)(5) to increase penalties for illegally transferring a firearm, and creates an additional 2-level increase at (b)(8) for trafficking in connection with knowingly participating in a criminal organization. The amendment adds a 4-level increase at (b)(4) for certain offenses involving ‘ghost guns’ privately made guns not marked with a serial number). Finally, the amendment creates a 2-level decrease at (b)(9) targeting the less culpable straw purchasers with no more than one criminal history point.”

“The amendment amends § 2K2.1 to respond to section 12004(a)(5) of the Act, which directs the Commission to consider an amendment accounting for straw purchasers with mitigating circumstances. The amendment implements this portion of the directive by creating a new specific offense characteristic at § 2K2.1(b)(9) providing a 2-level reduction available to defendants who receive an increase at subsection (b)(5) and satisfy other eligibility criteria. The amendment also deletes Application Note 15, which provided for a downward departure for certain straw purchasers, because subsection (b)(9) provides a reduction with broader criteria.”

A reduction applies “to straw purchasers without significant criminal histories, a defendant must have no more than 1 criminal history point to qualify for the specific offense characteristic.” Congressional intent was for “the Commission [to] account for mitigating circumstances,” so the Guidlines provide “the adjustment applies to a defendant motivated by an intimate or familial relationship or by threats or fear who was otherwise unlikely to commit such an offense, or to a defendant who was unusually vulnerable due to physical or mental conditions.”

“The amendment next amends § 2K2.1 to respond to section 12004(a)(5) of the Act, which directs the Commission to increase penalties for defendants convicted under 18 U.S.C. § 932 or § 933 who are affiliated with organized crime. The amendment implements this portion of the directive by creating a new specific offense characteristic providing for a 2-level enhancement under §2K2.1(b)(8). Section 2K2.1(b)(8) applies to those defendants who receive an increase at subsection (b)(5) and who committed the offense in connection with the defendant’s participation in an organization of five or more persons, knowing, or acting with willful blindness or conscious avoidance of knowledge, that the organization has as one of its primary purposes the commission of criminal offenses.”

“To ensure that a defendant would not receive the enhancement based solely on evidence unrelated to the criminal act or mere inclusion in gang databases, the enhancement requires that the defendant committed the offense ‘in connection with’ the defendant’s ‘participation’ in a criminal organization, and that the defendant knew or consciously avoided knowledge of the criminal nature of the organization’s activities. As with other amendments this year, the Commission determined that the doctrines of ‘willful blindness’ and ‘conscious avoidance’ are ‘well established in criminal law.’”

“The amendment next amends § 2K2.1 to respond to section 12004(a)(5) of the Act, which directs the Commission to increase penalties for defendants convicted under 18 U.S.C. § 932 or § 933 who are affiliated with organized crime. The amendment implements this portion of the directive by creating a new specific offense characteristic providing for a 2-level enhancement under § 2K2.1(b)(8). Section 2K2.1(b)(8) applies to those defendants who receive an increase at subsection (b)(5) and who committed the offense in connection with the defendant’s participation in an organization of five or more persons, knowing, or acting with willful blindness or conscious avoidance of knowledge, that the organization has as one of its primary purposes the commission of criminal offenses.”

Next, “the amendment amends § 2K2.1 to account for privately made firearms not marked with a serial number, commonly referred to as ‘ghost guns.’ The amendment provides a 4-level enhancement if the defendant knew that the offense involved a firearm not marked with a serial number, or the defendant was willfully blind or consciously avoided knowing this fact. In adding the enhancement, the Commission concluded that there is no meaningful distinction between a firearm with an obliterated serial number, which has long-triggered a 4-level enhancement under § 2K2.1(b)(4), and a firearm that is not marked with a serial number. The Commission also concluded that firearms not marked with a serial number share the traits that led the Commission to implement a 4-level enhancement for firearms with altered or obliterated serial numbers: ‘difficulty in tracing firearms with altered or obliterated serial numbers, and the increased market for these types of weapons.’”

“The Commission determined that the enhancement should apply only to those defendants who knew or consciously avoided knowing that the firearm was not marked with a serial number. The amendment also specifically excepts firearms manufactured before the effective date of the Gun Control Act of 1968, which imposed the requirement that federal firearms licensees serialize newly manufactured or imported firearms. The amendment also makes conforming changes to Application Note 8.”

Acceptance of Responsibility—Circuit Conflicts

Amendment #820 defines the term “preparing for trial,” which appears in § 3E1.1(b) and Application Note 6 to § 3E1.1. The amendment defines “preparing for trial” as “substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial,’“ the Brief stated. “The amendment also deletes hortatory language that the Commission previously added to Application Note 6 providing that the ‘government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.’“

“This amendment responds to circuit conflicts over whether a reduction under subsection (b) of § 3E1.1 (Acceptance of Responsibility), which requires a motion from the government, may be withheld or denied if a defendant moves to suppress evidence or raises sentencing challenges,” the Commission stated. “The amendment addresses the circuit conflicts by providing a definition of the term ‘preparing for trial,’ which appears in § 3E1.1(b) and Application Note 6 to § 3E1.1. The amendment also deletes hortatory language that the Commission previously added to Application Note 6 providing that the “government should not withhold such a motion based on interests not identified in § 3E1.1, such as whether the defendant agrees to waive his or her right to appeal.” See USSG App. C, amend. 775 (effective Nov. 1, 2013).”

“The amendment defines ‘preparing for trial’ as ‘substantive preparations taken to present the government’s case against the defendant to a jury (or judge, in the case of a bench trial) at trial.’ The amendment further provides examples of actions that ordinarily indicate preparing for trial (such as preparing witnesses for trial, in limine motions, proposed voir dire questions and jury instructions, and witnesses and exhibit lists). The amendment further provides that preparations for pretrial proceedings (such as litigation related to a charging document, discovery motions, and suppression motions) ordinarily are not considered preparing for trial, and that post-conviction matters (such as sentencing objections, appeal waivers, and related issues) are not considered preparing for trial.”

“The Commission promulgated this amendment to decrease variation between jurisdictions in applying § 3E1.1(b). The amendment also aims to minimize any deterrent effect on defendants’ ability to exercise their constitutional rights. See also § 3E1.1, comment. (n.2) (allowing consideration for the adjustment where a defendant exercise constitutional rights to trial to raise a constitutional challenge to a statute or challenge the applicability of a statute to the defendant’s conduct).”

Criminal History

Amendment #821 “is the result of several Commission studies regarding the nature of the criminal history of federal offenders, including analyses of the number and types of prior convictions included as criminal history and the ability of the criminal history rules to predict an offender’s likelihood of rearrest.”

It has three parts that alter how a defendant’s criminal History is scored. Part A of the amendment addresses “Status Points,” decreasing them by one point for individuals with seven or more criminal history points and eliminating Status Points for those with six or less criminal history points. The Commission’s research “found that an offender’s criminal history guideline calculation is strongly associated with the likelihood of future recidivism by the defendant but that status points only minimally improve the predictive value of the criminal history score—and less than the original Commission may have expected.”

“The amendment redesignates current subsection (d) of § 4A1.1, which addresses “status points,” as subsection (e) and redesignates current subsection (e), which addresses multiple crimes of violence treated as a single sentence, as subsection (d),” the Commission said. “First, as revised, the ‘status points’ provision under redesignated subsection (e) applies only to offenders with more serious criminal histories under the guidelines by requiring that an offender have seven or more criminal history points under subsections (a) through (d) in addition to having been under a criminal justice sentence at the time of the instant offense. Offenders with six or fewer criminal history points under subsections (a) through (d) will no longer receive “status points.” Second, the amendment also reduces from two points to one point the “status points” assessed for offenders to whom the revised provision applies. Part A of the amendment also makes conforming changes to the Commentary to § 4A1.1, § 2P1.1 (Escape, Instigating or Assisting Escape), and § 4A1.2 (Definitions and Instructions for Computing Criminal History).”

“The amendment retains status points in a more targeted fashion for offenders with seven or more criminal history points. Applying status points to a more targeted group of offenders continues to serve the broader purposes of sentencing while also addressing some of the other concerns raised regarding the impact of status points.”

Part B of the amendment includes three subparts making changes pertaining to offenders who did not receive any criminal history points from Chapter Four, Part A. “Subpart 1 of Part B of the amendment creates a new Chapter Four guideline at § 4C1.1 (Adjustment for Certain Zero-Point Offenders). New §4C1.1 provides a decrease of two levels from the offense level determined under Chapters Two and Three for offenders who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified aggravating factors.”

“The amendment applies to offenders with no criminal history points, including (1) offenders with no prior convictions; (2) offenders who have prior convictions that are not counted because those convictions were not within the time limits set forth in subsection (d) and (e) of § 4A1.2 (Definitions and Instructions for Computing Criminal History); and (3) offenders who have prior convictions that are not used in computing the criminal history category for reasons other than their “staleness” (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions).”

“Subpart 2 of Part B of the amendment revises the Commentary to § 5C1.1 (Imposition of a Term of Imprisonment) that addresses “nonviolent first offenders.” New Application Note 10(A) provides that if the defendant received an adjustment under new § 4C1.1 and the defendant’s applicable guideline range is in Zone A or B of the Sentencing Table, a sentence other than a sentence of imprisonment, in accordance with subsection (b) or (c)(3), is generally appropriate. New Application Note 10(B) adds a corresponding departure provision providing that a departure, including a departure to a sentence other than a sentence of imprisonment, may be appropriate if the offender received an adjustment under new § 4C1.1 and the applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.”

“Subpart 3 of Part B of the amendment makes a corresponding change to subsection (b)(2)(A) of §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) to provide that a departure below the lower limit of the applicable guideline range for Criminal History Category I is prohibited, “unless otherwise specified.” The amendment also revises an explanatory note in Chapter One, Part A, Subpart 1(4)(d) (Probation and Split Sentences) to detail amendments to the Guidelines Manual related to the implementation of 28 U.S.C. § 994(j), first offenders, and “zero-point offenders.”

“Part C of the amendment revises the Commentary to §4A1.3 (Departures Based on Inadequacy of Criminal History Category (Policy Statement)) 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. Specifically, Part C provides that a downward departure may be warranted if the defendant received criminal history points from a sentence for possession of marihuana for personal use, without an intent to sell or distribute it to another person.”

“Most commenters, including the Department of Justice, supported this change,” the Commission said. “The Commission also relied upon its recently published report on the impact of simple possession of marihuana offenses on sentencing,” which “found that 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marihuana possession sentences in fiscal year 2021. Most such prior sentences were for state court convictions resulting in less than 60 days in prison or noncustodial sentences. The Commission also found informative that ten percent (10.2%) of these 4,405 offenders had no other criminal history points, and that for 40 percent (40.1%) of the 4,405 offenders (1,765), the criminal history points for prior marihuana possession sentences resulted in a higher Criminal History Category.” See: U.S. Sent’g Comm’n, Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System (2023).

Career Offender

Amendment #822 “is a result of the Commission’s work on § 4B1.2 (Definitions of Terms Used in Section 4B1.1) regarding several application issues that have arisen in the context of the career offender guideline. As part of this study, the Commission considered varying case law interpreting certain guideline definitions and commentary to the guideline. Informed by the case law, public comment and relevant sentencing data, this amendment specifically addresses application issues regarding the meaning of “robbery” and “extortion” and the treatment of inchoate offenses. The amendment also makes necessary changes to further implement the congressional directive at 28 U.S.C. § 994(h).”

“Circuit courts have recently all concluded that Hobbs Act robbery does not fall within the §4B1.2 Career Offender guideline definition of ‘crime of violence’ after the Commission’s 2016 amendment adding the definitions of certain offenses.”

“The amendment addresses this circuit conflict by moving, without change, the commentary including certain inchoate and accessory offenses in the definitions of ‘crime of violence’ and ‘controlled substance offense’ to the text of the guideline. While not the subject of the circuit conflict, the amendment also moves the definitions of enumerated offenses (i.e., ‘forcible sex offense’ and ‘extortion’) and ‘prior felony conviction’ from the commentary to a new subsection (e) in the guideline to avoid similar challenges to their applicability.”

Separately, the circuit courts are split over whether definitions of “crime of violence” and “controlled substance offense” found in the §4B1.2 Commentary are authoritative, and whether they include inchoate offenses and offenses arising from accomplice liability, the Commission stated. “The amendment amends §4B1.2 to add to the new subsection (e) a definition of ‘robbery’ that mirrors the ‘robbery’ definition at 18 U.S.C. § 1951(b)(1) and makes a conforming change to §2L1.2 (Illegal Reentry), which also includes robbery as an enumerated offense.”

“The Commission views the recent decisions holding that Hobbs Act robbery is not a crime of violence under the guidelines as an unintended consequence of the 2016 amendment to the career offender guideline meant to remove threats to reputation. In addition, the Commission conducted an analysis of recent cases and found that the Hobbs Act robberies overwhelmingly involved violence. The amendment clarifies that ‘actual or threatened force’ for purposes of the new ‘robbery’ definition is ‘force sufficient to overcome a victim’s resistance.’“

“Finally, the amendment revises the definition of “‘controlled substance offense’ in §4B1.2(b) to include ‘an offense described in 46 U.S.C. § 70503(a) or § 70506(b).’ The directive at 28 U.S.C. § 994(h) instructs the Commission to assure that ‘the guidelines specify a term of imprisonment at or near the maximum term authorized’ for offenders who are 18 years or older and have been convicted of a felony that is, and have previously been convicted of two or more felonies that are, among other things, ‘an offense described in … chapter 705 of title 46.’ See 28 U.S.C. § 994(h).” In 2016, Congress enacted the Coast Guard Authorization Act of 2015, which amended Chapter 705 of Title 46 by adding two new offenses to section 70503(a), in subparagraphs (2) and (3). Following this statutory change, these two new offenses are not covered by the pre-amendment definition of “controlled substance offense” in § 4B1.2 as required by the directive. The Commission also made technical changes such as typographical errors to the Guidelines.

See: Amendments to the Sentencing Guidelines, U.S. Sentencing Commission, April 27, 2023.  

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