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September 29, 2022

New US Sentencing Commission releases its first set of tentative policy priorities

As reported in this USSC press release, the "newly constituted United States Sentencing Commission today issued tentative policy priorities for the 2022-2023 amendment year — with top focus on implementation of the First Step Act of 2018."  Here is more:

The First Step Act, which authorized defendants to file motions in federal court, helped facilitate a substantial increase in compassionate release filings during the COVID-19 pandemic but the Commission recently reported wide variation in grant rates among the federal courts (more here).

The Commission also proposed a focus on implementation of the Bipartisan Safer Communities Act of 2022 relating to firearms penalties under §2K2.1, one of the most common sentencing guidelines applied annually.  The act created new penalties for straw purchasers and increased penalties for other firearms offenses.

In addition, the Commission proposed consideration of several circuit court conflicts that have emerged since the loss of a quorum.  Commissioners also identified as a priority further examination of the guidelines relating to criminal history in light of the agency’s studies on recidivism and complications in the application of the career offender provision.  

U.S. District Judge Carlton W. Reeves, Chair of the Commission remarked, “This amendment cycle is a particularly exciting and challenging one for the Commission.  It will require swift consensus-building among my colleagues and thoughtful feedback from all our stakeholders.”

The Commission’s amendment cycle typically begins in June and ends the following April (more here).  The recently confirmed Commissioners will work on an expedited timetable to finalize priorities in October and adopt amendments by May 1, 2023.

Reeves stated, “We know much is expected of this new Commission beyond these immediate priorities, and we are eager to start laying that groundwork.  We will operate in a deliberative, empirically-based, and inclusive manner — open to voices from all parts of our federal criminal justice system — judges, Congress, the Department of Justice, the Federal Public Defenders, probation officers, victims, important advocacy groups, and the public at large.”

A complete list of proposed priorities and comment submission instructions can be found here.  Public comment will be accepted through October 17, 2022.  

There are lots and lots of "hot topics" covered in the 13 items specified by the Commission in this new list of tentative priorities. Though I could get excited about just about all of them, I see particularly interesting possibility lurking in this "group of four":

(8) Consideration of possible amendments to the Guidelines Manual addressing 28 U.S.C. § 994(j).

(9) Consideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.

(10) Multiyear study of the Guidelines Manual to address case law concerning the validity and enforceability of guideline commentary.

(11) Continuation of its multiyear examination of the structure of the guidelines post-Booker to simplify the guidelines while promoting the statutory purposes of sentencing.

Exciting times!!

September 29, 2022 at 02:45 PM | Permalink


I mean, the compassionate release one could be huge. It could literally allow people to get out of prison who cannot right now in the 11th, 7th, and 6th Circuits, for example.

Or it could shut the door on a lot of people.

Also, the Circuit split one I think will be impactful.

Posted by: Zach Newland | Sep 30, 2022 10:24:44 AM

Under existing SCOTUS law, the USSC has no binding authority whatever. It can't make law. It can't even make rules. It can only make suggestions, to which courts may give such deference, or none, as they see fit. Thus the Commission cannot "resolve" this or any other circuit split. It can only hold forth with a disregardable opinion paper.

It doesn't need to be this way. Congress could give the Commission more power -- the power the Court took away in Booker -- but it's not going to, and the present Commission isn't even going to ask it to. So this is where we are.

Posted by: Bill Otis | Oct 1, 2022 11:50:47 AM

Actually, Bill, the USSC arguably can write binding law to limit when and how motions for sentence reductions can be granted pursuant to § 1B1.13. Such reductions of a sentence do not raise the Sixth Amendment issues that drove the merits ruling in Booker (and which prompted the remedy of making other guidelines advisory). The Supreme Court so held (in a slightly different context) in Dillon v. US in 2010.

I say "arguably" because, if the Commission creates strict new limits on sentence reductions, defendants will surely argue that they ought only be deemed advisory. But Dillon -- authored by Justice Sotomayor for a 7-1 Court -- would make that a very hard argument.

Posted by: Doug B | Oct 1, 2022 9:28:30 PM

Doug --

The Commission is not a court. It is also not a legislature, so it can't write law. It's within the judicial branch, so it doesn't have the regulation-writing authority of something like the SEC. The guidelines themselves, the Commission's most important product by far (and its main raison detre') are advisory only. Unlike statutes, courts can (and regularly do) disregard them. And anything it proposes that would like to pose as law can be vetoed by Congress, which actually does write law.

I don't think you need to worry about the present Commission creating "strict new limits on sentence reductions." The question realistically is whether it will suggest retaining any limits at all.

Posted by: Bill Otis | Oct 2, 2022 2:52:22 PM

Bill, are you familiar with the Supreme Court's 2010 ruling in Dillon? There, SCOTUS held, even after Booker, that "§3582(c)(2) REQUIRES the court to FOLLOW the Commission’s instructions in §1B1.10 to determine the prisoner’s eligibility for a sentence modification and the extent of the reduction authorized." So SCOTUS has held that Congress did empower the USSC to write "instructions" that courts are REQUIRED to follow. Instructions that court's are required to follow sound a lot like law to me, and Dillon expressly rejected that the 2005 Booker ruling making other guidelines advisory changed this reality.

Are you claiming Dillon is wrong? Are you saying it is right but you think it can be distinguished in the context of so-called compassionate release? (Again, I think there is a viable argument here, but a very hard one. Lots of defense attorneys would likely be eager to hear an argument that Dillon can and should be distinguished here?)

Of course, Congress could (and did) sometimes reject the USSC's guidelines when they were mandatory and also when advisory. But that did not mean they did not function as law when mandatory and they still function as a strange form of law even now that they are advisory --- e.g., there are still ex post facto limits on applying new harsher guidelines, see Peugh v. US, 569 U.S. 530 (2013).

Are you familiar with any of this significant sentencing law? You were once a USSC nominee, so I would think would be, but your comments --- eg., stating wrongly that the USSC has "no binding authority whatever" --- almost suggests otherwise.

Posted by: Doug B. | Oct 2, 2022 5:25:41 PM

Berman 1
Otis 0

Posted by: whatever | Oct 3, 2022 5:26:27 PM

It would seem to me that 3582(c)(1)(A) explicitly makes the guidelines binding as it relates to compassionate release, so what the Commission does under 1B1.13 would be binding as well. No?

Posted by: Tom Church | Oct 24, 2022 4:59:11 PM

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