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January 8, 2016

US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments

As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.

I say this because,

(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....

(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts.  Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.

Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action.  But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less).  Kudos to the USSC!

UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:

At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.

In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.

January 8, 2016 at 02:13 PM | Permalink


Has there ever been an amendment to the fraud guidelines to shift them from being based on dollar benefits represented and not delivered v. dollars actually lost? Some of the more problematic sentences come from that flaw since really, really big purported benefits represented are in some sense the most naive and marginal of fraud cases (because no one should believe them and they were far exaggerated from what was really going on) as opposed to the frauds that make smaller promises and because they are more plausible pull more people in and create greater out of pocket losses.

Posted by: ohwilleke | Jan 8, 2016 3:15:37 PM

Why would it be "administratively impossible" to make this retroactive? The retroactive crack amendments weren't impossible.

Posted by: dh | Jan 8, 2016 5:50:15 PM


Probably because the depth of litigation as to each case is too much. The crack amendment was mostly a simple matter of quick math.

Posted by: USPO | Jan 8, 2016 9:03:20 PM

A violent offense includes the threat of violence. So, I say, I will kick your as next time I see you, I am now a violent offender. I have a bad reputation, and will not stop glaring, I am a violent offender.

What tragically in competent drafting, even after rejection by the Supreme Court.

Posted by: Supremacy Claus | Jan 9, 2016 6:09:42 AM

If the Commission does not make the amendment retroactive, what happens to defendants who, say, had a prior conviction for reckless manslaughter or reckless murder that was used as a career offender predicate? Is the movement of the listed offenses from commentary to text of Guideline, and addition of requirement of intentional conduct, considered a substantive amendment (prospective only) or a clarification (applied retroactively)?

Posted by: Da Man | Jan 9, 2016 10:22:01 AM

TO USPO: To the contrary, this amendment mostly eliminates the gray areas of what qualifies, and eliminates burglary entirely. For vast numbers of cases it's going to be no more complicated than the crack re-evaluation. Whatever concerns may be offered about administrative work, it's about correcting excessive and unjust punishment, which is a core function for the Courts.

Posted by: dh | Jan 9, 2016 11:58:54 AM


Quick! Tell me if a conviction under section 211 of the CA Penal Code is still a crime of violence under the amendment, considering whether CA law requires jury unanimity as to every element. It's just simple math, right?

There's layers of case law in every circuit that make the career offender guideline (even under the proposed amendment) a thicket of legal analysis. Not all robberies are robberies. Not all extortions are extortions. Voluntary Manslaughter is on the list, but In California, a Voluntary Manslaughter conviction doesn't qualify. Do you know why?

Sorry Bub, you're incorrect on this point.

Posted by: USPO | Jan 9, 2016 9:29:00 PM

No one wants to say if the amendment clarifies, as opposed to substantively alters, the career offender guideline? Doug??

Posted by: Da Man | Jan 10, 2016 10:16:31 AM

I think it's obviously a substantive alteration to the guideline. It is changing what qualifies as a COV. But even if it was clarifying, that doesn't make it retroactive unless the Commission separately votes to do that. See 1B1.10. The clarifying/substantive thing is about what can be applied to past conduct for ex post facto purposes, not whether an amendment is retroactive to already sentenced prisoners.

Posted by: Jay | Jan 10, 2016 7:20:44 PM

Jay -- that's not exactly right. If the Guideline is changed while a case is on direct review, it will not apply retroactively unless the amendment, according to case law, clarifies the meaning of the Guideline. This is based on the principle that you are to be sentenced based on the Guideline in effect at sentencing. If the Guideline is subsequently clarified, you are entitled to the benefit of that clarification because the Commission is simply announcing what the Guideline always meant.

So, if a defendant was classified as a career offender based on, say, a convcition for reckless murder, and while that defendant's appeal is pending the Commission says that only intentional murders qualify, that defendant gets a remedy only if the amendnment was clarifying, not substantive.

Posted by: Da Man | Jan 11, 2016 1:29:52 PM

Fair point about 1B1.11. I shouldn't have said "already sentenced," but rather defendants whose convictions have become final, including direct appeal. What I was getting at, though, is that "retroactivity" usually refers to the separate issue of whether a defendant whose conviction is final can seek a reduction through a 3582(c)(2) motion.

Posted by: Jay | Jan 11, 2016 8:56:06 PM

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