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January 12, 2023

US Sentencing Commissions publishes proposed guideline amendments and issues for comment

This afternoon, the (finally) fully loaded US Sentencing Commission held a public meeting in which it discussed and published proposed guideline amendment on a number of topics. This official press release provide this summary (with links from the original):

The United States Sentencing Commission voted today to publish for comment proposed guideline amendments on several topics, including revisions that would implement two significant changes made by the First Step Act of 2018.

The First Step Act authorized defendants for the first time to file a motion for compassionate release, without having the Director of the Bureau of Prisons make a motion. Today’s proposed amendment would add this new procedural option.   The amendment would also revise the circumstances identified by the Commission as “extraordinary and compelling reasons” for purposes of a motion for compassionate release.

“Commission data have indicated that in recent years — over the COVID-19 pandemic and without a Commission quorum — the district courts have granted compassionate release at varying rates.  It is my sincere hope that our work today and in the coming months brings greater clarity to the federal courts and more uniform application of Compassionate Release across the country,” said Judge Carlton W. Reeves, Chair of the Commission.

The First Step Act also expanded “safety valve” eligibility for relief from mandatory minimum penalties to certain offenders with more than one criminal history point.  The Commission proposed changes today that would update §5C1.2 and amend the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

Consistent with its responsibility to respond to major legislation affecting federal crimes, the Commission also voted to publish a proposed amendment implementing the Bipartisan Safer Communities Act — firearms legislation that passed after the school shooting in Uvalde, Texas.  The Act directed the Commission to increase penalties for certain firearms offenders, particularly straw purchasers. 

The Commission also published a package of amendments relating to the criminal history rules, including reconsideration of “status” points for defendants who commit the instant offense while under another criminal justice sentence, the treatment of defendants with zero criminal history points, and the impact of simple possession of marihuana offenses.

The amendment also presents an alternative to the “categorical approach,” a complex legal test courts use to determine whether a conviction qualifies an offender for enhanced penalties under the guidelines. “I have heard consistently from judges throughout the nation that the categorical approach should be reconsidered. Judges are far too often flummoxed by how to apply the categorical approach.  This is certainly a matter that the Commission will continue to discuss and one that warrants a public hearing,” Judge Reeves said.

The Commission also asked for comment on whether the guidelines adequately address certain sexual abuse offenses, how it should address important circuit court conflicts, and whether the guidelines appropriately account for acquitted conduct, among other matters.

“The Commission received more than 8,000 letters of public comment on our tentative priorities in October,” said Reeves, “and we again look forward to robust comment in response to these proposed amendments.” 

The proposals are subject to a 60-day public comment period running through mid-March.  The Commission will hold public hearings in February and March to receive expert testimony on the amendments proposed at today’s meeting.  The events will stream live on the Commission's website.  A data briefing on today’s proposed criminal history amendments will also be made available in the coming weeks.

Notably, this overview of proposed amendments only provides a partial account of all that sentencing fans should find interesting in the new proposed amendment. For example, the proposals also include a provision to "amend §1B1.3 to add a new subsection (c) providing that acquitted conduct shall not be considered relevant conduct for purposes of determining the guideline range unless the conduct was admitted by the defendant during a guilty plea colloquy or was found by the trier of fact beyond a reasonable doubt to establish, in whole or in part, the instant offense of conviction."

I hope to find timein the coming days and weeks to comment in various ways on these amendments. And I am hopeful that we will see lots of commentary and analysis from lots of sources and perspectives as the new USSC gears up finalize the first set of guideline amendments in nearly 5 years.

January 12, 2023 at 03:18 PM | Permalink


If you can't win the acquitted conduct issue in Congress or the courts, hey, look, no problem. Just have a bunch of unaccountable and almost unknown "experts" stick it in the Guidelines.

Yes, well, so much for respect for law.

This makes me happy for once that the Guidelines have become "advisory only" and can be disregarded at will.

Posted by: Bill Otis | Jan 13, 2023 1:31:35 PM

Bill, do you think "the law" requires the consideration of acquitted conduct for purposes of determining the guideline range? I have not seen an argument that the Constitution or a statute requies such consideration of acquitted conduct. Absent such an argument it is fully respectful of the law for the USSC to decide to amend the guidelines to limit consideration of acquitted conduct for purposes of determining the guideline range.

Notably, Chapter 5 Part H of the guidelines have been amended numerous times to limit or change what factors the USSC thinks should be considered by courts at sentencing. Do you think those amendments showed a lack of "respect for law"?

Of course, the USSC has just put forward proposals and seeks comment thereon. Are you going to submit a commet making the case for the consideration of acquitted conduct for purposes of determining the guideline range?

Posted by: Doug B. | Jan 13, 2023 11:37:21 PM

Doug --

"Bill, do you think "the law" requires the consideration of acquitted conduct for purposes of determining the guideline range?"

I think the law requires the consideration AT SENTENCING of conduct proved by a preponderance. This is not exactly a novel belief. Proof BRD is not required at the sentencing stage.

You're conflating the question of when consideration of acquitted conduct is required with the question of when it may be forbidden, which is what you're after. But it more nearly resembles a play on word than an argument.

"Are you going to submit a comment making the case for the consideration of acquitted conduct for purposes of determining the guideline range?"

No. It would be a waste of time. The pro-criminal majority has already made up its mind, as I suspect you know. And it makes no difference in any event because the guidelines are nothing but suggestions.

Posted by: Bill Otis | Jan 18, 2023 2:58:47 AM

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