April 12, 2018
US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments
As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:
At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.
Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).
The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.
The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....
At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.
The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.
As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.
As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.
April 12, 2018 at 01:09 PM | Permalink
No comment on the substance of the change but am I the only one who thinks " [and if] Congress does not act to disapprove the amendments," is blatantly unconstitutional? As far as the Executive is concerned a failure to take action is a "pocket veto", it means that nothing is approved. So how does Congress get away with a "pocket approval"? That seems wholly inconsistent with a the idea that Congress has to formally approve things. So I just don't see how this procedure is in any way OK.
Posted by: Daniel | Apr 12, 2018 1:26:10 PM
This process is built into the Sentencing Reform Act, where Congress gave itself six months to veto guideline changes proposed by the USSC. Mistretta in 1989 indirectly approved this structure, which arguably became somewhat less constitutionally hinky when the guidelines became only advisory.
Posted by: Doug B. | Apr 12, 2018 1:34:59 PM