A Look Ahead At The Amendments For The 2024 Sentencing Guidelines
Having finally regained a voting quorum for the first time since 2018, the U.S. Sentencing Commission enacted substantial changes to the last version of the United States Sentencing Guidelines Manual, which took effect on November 1, 2023. The Commission is continuing its work with a slate of new amendments for the Guidelines Manual which will take effect on November 1, 2024. One of the most noteworthy changes is to prohibit acquitted conduct from being used to calculate the sentencing range under the Sentencing Guidelines. The 2024 Sentencing Guidelines will also include significant changes with respect to how youthful offenders are sentenced, how loss in fraud cases is calculated, and how offenses involving weapons with altered or obliterated serial numbers are punished. This article examines the 2024 amendments and breaks down the most significant aspects of them.
Acquitted Conduct
Under the current Sentencing Guidelines, acquitted conduct is considered “relevant conduct” under U.S.S.G. § 1B1.3. The use of acquitted conduct to increase an offender’s punishment has been a ongoing concern within the criminal justice system and the subject of lively debate for several years. A number of judges, including current and past Supreme Court Justices, have weighed in on reconsidering the use of acquitted conduct at sentencing.
In passing the amendment, the Chair of the U.S. Sentencing Commission declared, “Not guilty means not guilty.” The amendment revises § 1B1.3 to exclude acquitted conduct from the scope of relevant conduct used in calculating the sentencing range under the Sentencing Guidelines. The Commission is careful to point out that acquitted conduct is “unique” and the amendment does not affect the use of uncharged, dismissed, or other relevant conduct as defined in §1B1.3.
The amendment also adds a new Application Note, which clarifies that in cases in which some conduct constitutes both acquitted conduct and instant offense conduct, the sentencing judge is in the best position to decide if such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore constitutes as relevant conduct.”
Youthful Offenders
Under the current Sentencing Guidelines, an offender’s youthful age as a sentencing factor can only be considered, alone or in combination with other factors, when it is “present to an unusual degree and distinguishes the case from the typical cases covered by the guidelines.”
The amendment revises U.S.S.G. § 5H1.1 to provide more broadly that “age may be relevant in determining whether a departure is warranted.” It also adds language specifically providing that a downward departure may be warranted where the offender was youthful when they committed the instant offense or any prior offenses.
The amendment reflects the Commission’s view that evolving science and data regarding youthful offenders recognizes the “age-crime curve” and that cognitive changes extend into the mid-20s affect personal behavior and culpability. It further reflects expert testimony to the Commission that some risk factors may contribute to youthful involvement in criminal behavior, while protective efforts, such as interventions, may promote desistance from crime.
Calculation of Loss
Under the current Sentencing Guidelines, the general rule establishing loss as the “greater of actual loss or intended loss” is contained in Commentary as an Application Note to U.S.S.G. § 2B1.1. While this general rule has been nearly uniformly followed by federal courts, the Third Circuit held that because the term “loss” unambiguously means actual loss in the text of the Sentencing Guidelines, and because the Commentary is not binding, courts must use the actual loss to determine a defendant’s offense level even if the intended loss is higher. This created a situation where loss for offenders in the Third Circuit were being computed differently, and to the offender’s benefit, than in other circuits.
The amendment seeks to ensure the consistent calculation of loss by creating “Notes” to the loss table in § 2B1.1, and moving the general rule establishing loss as the greater of actual loss or intended loss from the Commentary to the Sentencing Guidelines text itself as part of the Notes. The amendment similarly transfers rules providing for the use of gain as an alternative measure of loss, and the definitions of “actual loss,” “intended loss,” “pecuniary harm,” and “reasonably foreseeable pecuniary harm,” from the Commentary to the Notes.
It’s noteworthy that this amendment, unlike most amendments in recent years, works to the detriment of defendant rather than to their benefit. In fact, all the other amendments in this cycle benefit the defendant.
Altered or Obliterated Serial Numbers
Under the current Sentencing Guidelines, a 4-level enhancement applies under U.S.S.G. § 2K2.1 when the serial number of a firearm has been “altered or obliterated.” In recent years, a circuit conflict has arisen as to whether the serial number must be illegible and what test to apply for legibility. Courts have varied widely on these questions, ranging from a “naked eye” test to a “less legible” test.
The amendment resolves the circuit conflict by adopting the naked eye test, that is, the serial number must be illegible because a serial number that is defaced but remains visible to the naked eye has not been “altered or obliterated.” Specifically, as amended, the increase applies if “any firearm had a serial number that was modified such that the original information is rendered illegible or unrecognizable to the unaided eye.”
Conclusion
The Sentencing Guidelines remain a central component in federal criminal sentencing practice. They are continually changing through amendments and case law interpretation, and even more so now that the Sentencing Commission once again has a voting quorum. It is critical that federal defendants and practitioners stay informed and thoroughly understand changes to the Sentencing Guidelines to ensure the best outcome at sentencing. Look for future articles breaking down the Sentencing Commission’s proposed amendments in the amendment cycles to follow!