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January 14, 2011

Lots of (very little?) new guideline amendments proposed by US Sentencing Commission

As detailed in this official public notice now up on the USSC's website, "the United States Sentencing Commission is considering promulgating certain amendments to the sentencing guidelines, policy statements, and commentary." Helpfully, this notice sets forth not only the proposed amendment, but "a synopsis of each proposed amendment, and several issues for comment." Here is a summary from the document of what's covered:

The proposed amendments and issues for comment in this notice are as follows:

(1) a proposed amendment on drug trafficking, including (A) a proposal to repromulgate as a 2 permanent amendment the emergency, temporary amendment in response to the Fair Sentencing Act of 2010, Pub. L. 111–220, regarding offenses involving crack cocaine and regarding certain aggravating and mitigating circumstances in drug trafficking cases, and (B) a proposed change to §2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) to implement the directive in section 4 of the Secure and Responsible Drug Disposal Act of 2010, Pub. L. 111–273, and related issues for comment on drug trafficking;

(2) a proposed amendment on firearms, including proposed changes to §2M5.2 (Exportation of Arms, Munitions, or Military Equipment or Services Without Required Validated Export License) regarding certain cases involving small arms and ammunition crossing the border and related issues for comment, including whether revisions to §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition) and related guidelines may be appropriate to address concerns about firearms crossing the border and straw purchasers;

(3) a proposed amendment to Appendix A (Statutory Index) in response to the Dodd-Frank Wall Street Reform and Protection Act, Pub. L. 111–203, and issues for comment regarding the directives in section 1079A of that Act;

(4) a proposed amendment to §2B1.1 (Theft, Property Destruction, and Fraud) to implement the directive in section 10606 of the Patient Protection and Affordable Care Act, Pub. L. 111–148, and a related issue for comment;

(5) a proposed amendment on supervised release, including a proposed change to §5D1.1 (Imposition of a Term of Supervised Release) on cases in which the court is required by the guidelines to impose supervised release and a proposed change to §5D1.2 (Term of Supervised Release) on the minimum lengths required by that guideline for a term of supervised release, and related issues for comment;

(6) a proposed amendment to §2L1.2 (Unlawfully Entering or Remaining in the United States) that would provide a limitation on the use of convictions under §2L1.2(b)(1)(A) and (B) in certain circumstances;

(7) a proposed amendment to §2J1.1 (Contempt) that would address a circuit conflict on the applicability of a specific enhancement in a case involving the willful failure to pay court-ordered child support;

(8) a proposed amendment in response to miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline application issues, including proposed changes to the policy statement at §6B1.2 (Standards for Acceptance of Plea Agreements) in light of United States v. Booker, 543 U.S. 220 (2005), and proposed changes to Appendix A (Statutory Index) to address certain criminal provisions in the Coast Guard Authorization Act of 2010, Pub. L. 111–281; and

(9) a proposed amendment in response to certain technical issues that have arisen in the guidelines.

Other than the proposed amendment to make permanent the new crack guidelines (#1) and to tweak the unlawful entry guideline (#6), none of these other proposes amendments appear on the surface to be very consequential or important. But maybe practitioners can and will report that there is indeed a lot here of note.

January 14, 2011 at 10:40 AM | Permalink


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The amendment to 2L1.2 is important in my opinion because it may be the first prompt and unforced significant amendment to a guidline by the commission. The amendment refers to amezcua-vasquez, which I have been arguing with marginal effect shows that a 16 level enahncement for an old conviction is not justified per 3553(a). while I have had some success getting some movement from the district courts, it was not an 8 level reduction as the commission has proposed.

It is very positive that the commission responded to the fairly few cases where this issue was brought up and proposed the amendment. BTW, the USprobation group had also made this recommendation.

However, the commission should not rest upon its laurels with this guideline. A 16 level enhancement needs justification, and this provision was never justified. It is larger than the 15 level enhancement for using a portable rocket or missle launcher in 2K2.1(b)(3). returning to the US after having committed a burglary should not result in a greater enhancement than having a stinger missle.

Posted by: KRG def attny | Jan 14, 2011 11:46:10 AM

The 2L1.2 amendment is quite significant and is a much-needed improvement to a seriously flawed guideline.

Posted by: DEJ | Jan 14, 2011 12:52:20 PM

KRG, you have a very strong point...returning to the US after having committed a burglary should not result in a greater enhancement than having a stinger missle. This makes absolutely no sense why its so high....It must be futile to fight with such a ridiculous enhancement...Maybe a 4 level enhancement, no more...

Posted by: Abe | Jan 14, 2011 2:14:27 PM

I am in the process of writing a variance argument on the 2L1.2 old priors issue, and I have another client who will have the same argument in a few months. It's a big issue.

Posted by: Anon | Jan 14, 2011 3:06:55 PM

The proposed 2L1.2 amendment is huge.

Posted by: law1 | Jan 14, 2011 3:17:01 PM

I would disagree that reentry after being deported for a burglary conviction shouldn't carry a heavier sentence than possession of a shoulder launched missile. Mostly because I believe possessing the missile should be perfectly legal (launching it, however, would be another matter entirely).

Posted by: Soronel Haetir | Jan 14, 2011 4:06:15 PM

The Commission also requested "public comment regarding retroactive application of any of the proposed amendments."

Is this standard language that the Commission uses every time? Or is it a small indication that the Commission is considering making the 2D1.2 crack reduction and 2L1.2 amendment retroactive?

Posted by: DEJ | Jan 14, 2011 6:30:40 PM

Unlike the 2007 amendment, my guess is that there will be strong opposition to applying the FSA inspired amendments to inmates via § 3582(c)(2). Making the 2010 reduction in the crack guidelines retroactive involves "too much work" from the justice system. The last round of § 3582 motions took an enormous amount of time to resolve. Even today, I still have cases pending based on the 2007 amendments.

If the amendments are not expressly made retroactive, significant due process and equal protection concerns result for inmates sentenced under the more severe crack penalties. In this circumstance, I believe inmates should seek application of the new penalties in a motion under 28 U.S.C. § 2255. I know this view may be controversial to some, but I cannot understand why this issue should not be pursued.

Posted by: Matthew Robinson | Jan 17, 2011 9:10:43 AM

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