US Sentencing Commission seeking comment on reduced criminal history guideline being retroactive

As detailed in this official Federal Register Notice of request for public comment, the US Sentencing Commission is formally seeking input on whether to make its new defendant-friendly amendment to the criminal history sentencing guidelines retroactive. Here is the USSC's summary from its website of what its doing here:

On April 29, 2010, the Commission submitted to the Congress amendments to the sentencing guidelines and official commentary, which become effective on November 1, 2010, unless Congress acts to the contrary.  Such amendments and the reasons for amendment subsequently were published in the Federal Register (75 FR 27388, May 14, 2010).  One of the amendments, specifically Amendment 5 pertaining to the use of recency as a factor in the calculation of the criminal history score, has the effect of lowering guideline ranges.  The Commission requests comment regarding whether that amendment should be included in subsection (c) of §1B1.10 (Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement)) as an amendment that may be applied retroactively to previously sentenced defendants. (75 FR 41279)

Ironically, because Percy Dillon lost his SCOTUS appeals contending that district courts should have broader sentencing discretion when dealing with guideline amendments made retroactive, I predict that the USSC will be much more inclined to make this defendant-friendly amendment (and any other future similar amendments) retroactive.  Indeed, the Dillon outcome likely will also make DOJ and others less inclined to categorically oppose retroactivity and to instead urge refined restrictions on exactly who can get to benefit from a new guideline made retroactive.

Recent related posts:

• SCOTUS rules 7-1 against defendant in crack retroactivity case
• Percy Dillon's loss is sure to be other future defendants' gain