A Look At The Latest Amendments Included In The 2023 Sentencing Guidelines

Amendment 821

The U.S. Sentencing Commission voted to make Parts A and B of Amendment 821 retroactive. It’s estimated that the retroactive application of Amendment 821 potentially impacts more than 17,000 federal prisoners. If they meet the requirements, effected defendants can seek retroactive relief by filing a motion pursuant to 18 U.S.C. § 3582(c)(2).

Part A: Calculation of Status Points

Part A of Amendment 821 changes the method in which criminal history points are scored under the former guideline U.S.S.G. § 4A1.1. Prior to the amendment, a defendant received two criminal history points “if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. § 4A1.1(d) (2021). The Amendment alters the former § 4A1.1(d) by adding the following language to § 4A1.1(e): “Add 1 point if the defendant (1) receives 7 or more points under subsection (a) through (d), and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” As shown, defendants will no longer receive any “status” points for being under a criminal justice sentence unless they have at least seven criminal history points prior to application of the section.

As for retroactivity, if a defendant previously received two criminal history points under § 4A1.1(d), they may now receive a one or 2-point point reduction in their criminal history score. Specifically, a defendant with less than seven points would now receive a two-point reduction, while a defendant with seven or more points would receive a 1-point reduction.

Depending on the final calculated criminal history score, a one or 2-point reduction can potentially reduce the defendant’s criminal history category by one full category level, thereby reducing the guideline sentencing range.

Keep in mind that a reduction under Amendment 821 is not automatic. The defendant must first file a motion under 18 U.S.C. § 3582(c)(2). And then, even if the defendant is eligible because the reduction would lower their guideline sentencing range, the court still has discretion in determining whether to grant a reduction and to what extent. In exercising its discretion, the court is required to consider the sentencing factors listed at 18 U.S.C. § 3553(a). Further, in some cases, a defendant who received an increase under § 4A1.1(d) may be ineligible, including where the reduction would not lower the criminal history category or guideline sentencing range, the defendant was sentenced to a mandatory minimum, or the defendant was sentenced below the amended guideline sentencing range.

Part B: Zero-Point Defendants

Part B of Amendment 821 applies a two-level decrease in the offense level for defendants who received no criminal history points and meet all the other criteria set forth in the new U.S.S.G. § 4C1.1. These criteria include the defendant did not receive a terrorism enhancement under § 3A1.4, the defendant did not use violence in connection with the offense, the offense did not result in death or serious injury, the offense is not a sex offense, the defendant did not cause substantial financial hardship, the offense did not involve the possession or use of a firearm or dangerous weapon, the offense is not covered under § 2H1.1 (individual rights), the defendant did not receive an enhancement under § 3A1.1 (hate crime or vulnerable victim) or § 3A1.5 (human rights), and the defendant did not receive an enhancement under § 3B1.1 (aggravating role) and was not engaged in continuing a criminal enterprise under 21 U.S.C. § 848.

Based on the long list of qualifications, seeking a retroactive reduction under Part B is obviously more restrictive and difficult than under Part A. Further, a number of the criteria require factual findings by the court beyond the mere technical application of the guidelines. One other issue is confusion over the language of the last criteria. That is, arguably, to be found ineligible under this criteria, the defendant would have had to receive an aggravating role enhancement and have been found to be engaged in continuing criminal enterprise. However, some circuit courts have found that having just one or the other is disqualifying. As such, the Commission has proposed an amendment to the 2024 Guidelines addressing this issue.

Part C: Simple Possession of Marijuana (Non-Retroactive)

While not retroactive, this amendment provides the opportunity to defendants whose sentences are not yet final to seek a downward departure from the sentencing guideline range. Specifically, the amendment revises the commentary to U.S.S.G. § 4A1.3 (departures from criminal history category) which gives examples of when a downward departure may be warranted. Under the new language, a downward departure should be considered 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.”

Additional Changes

The latest amendments also include new language at U.S.S.G. § 3E1.1(b) (acceptance of responsibility) to minimize the deterrent effect on a defendant’s ability to exercise their constitutional rights to engage in pretrial litigation. Also, U.S.S.G. § 4B1.2 (career offender) was amended to specifically incorporate inchoate offenses (e.g. attempt, aiding and abetting) as part of the definition of both a “crime of violence” and a “controlled substance offense.”