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November 1, 2024
Once again, a November starts, the new Guidelines are here, the new Guidelines are here!!
Though I have made this old reference many times before, November 1 still gets me thinking of this silly scene from "The Jerk" in which which Steve Martin's character is so excited about the new phonebook, which he says means "things are going to start happening" now. I am not sure if anyone even prints phonebooks anymore; I am sure, in the federal sentencing world, it is still exciting when the "new book," the latest official revised version of the US Sentencing Guidelines, becomes official and effective on November 1.
Excitingly, the US Sentencing Commission sent out an email yesterday highlighting some notable new resources related to the new guidelines. Here is part of the text and links from this email:
What's New In The 2024 Manual?
Amendment 826 (Acquitted Conduct)
Amendment 827 (Loss Calculation)
Amendment 829 (Youthful Individuals)
... and more!
Learn about all of this year's amendments in the Reader-Friendly or review the quick summary of changes inside the front cover of the printed manual.
The Commission has parked all six segments of the USSC podcast described as a "Guideline Amendments Miniseries" are available at this link. Though there are a number of interesting elements to these amendments, they are all relatively modest in their particulars, especially as compared to the many more consequential changes in the 2023 Guideline amendment cycle.
Interestingly, these may be the first set of amendments in which we do not know, at the time of implementation, if any could end up retroactive. After gathering comment and conducting a public hearing in July on this topic, the Commission in August announced at a public meeting that it would "not be voting on retroactivity" while it worked on "clear principles that will guide its approach to retroactivity." I do not know if the Commission is making progress on this front, but I do not know that amendments are not retroactive unless and until the Commission votes to formally make them retroactive.
November 1, 2024 at 09:10 AM | Permalink
Comments
Youthful offender==more latitude the less serious the crime.
And if a youthful offender acts in concert with another, if that another is older etc., then that other offender should be sentenced more harshly for bringing along a younger person who may not have committed the offense but for the malign influence.
https://thefederalist.com/2024/11/01/if-trump-wins-he-should-arrest-and-prosecute-jimmy-kimmel/ This is a fair point.
Posted by: federalist | Nov 1, 2024 9:35:46 AM
Surprisingly, they DO still print yellow pages. They are very slim volumes and I am surprised every time one shows up on my doorstep.
Posted by: defendergirl | Nov 1, 2024 10:48:57 AM
So, if I understand Amendment 826, if defendant is only found guilty of a lesser-offense (e.g., only found guilty of possessing one pound of a controlled substance, but not possessing the five pounds which would trigger a higher minimum), the guidelines can't be based on him having committed the higher offense. But, if was acquitted in an earlier case (or pled guilty to a lesser in the earlier case), you can consider that in assessing the appropriate sentence in light of all the goals of sentencing?
Posted by: tmm | Nov 1, 2024 12:09:47 PM
tmm: The new guideline does not preclude any consideration of any form of (past or present) "acquitted conduct" in the consideration of the statutory sentencing factors in 3553(a). All the new guideline does is limit the definition of so-called "relevant conduct," which is conduct that must be used to calculate the guideline range, so that relevant conduct now "does not include conduct for which the defendant was criminally charged and acquitted in federal court."
So I think a defendant charged and acquitted in state court past or present (eg, police in Rodney King case; OJ) still could have their "(state) acquitted conduct" potentially considered as relevant conduct for guideline calculation purposes. And, again, federal judges are still able to consider any and all acquitted conduct in any and all as the basis of a "variance" from the guidelines (though subject to reasonableness review on appeal).
Posted by: Doug B | Nov 1, 2024 1:21:16 PM
tmm raises an interesting question: let's say you're charged with a (b)(1)(B), you get a lesser-included instruction to a (b)(1)(C), and the jury convicts on the (b)(1)(C) but acquits on the (b)(1)(B). Could a judge say that the acquitted conduct establishes "in part" the (b)(1)(C), meaning it could consider the acquitted (b)(1)(B) conduct in determining drug weight under the guidelines? I hope not - clearly not in the spirit of what the commission's up to - but given that the acquitted conduct and the convicted conduct share elements in common a naive reading of the guideline could allow you to say that the acquitted conduct establishes "in part" the offense of conviction.
(Probably the best textual argument to the contrary is to focus on the word "conduct" --- when you're convicted of a lesser and acquitted of a greater the "conduct" you're acquitted of is the conduct establishing the extra elements that make the greater the greater, so the acquitted conduct in this hypo actually doesn't in any way establish the instant / lesser offense.)
Posted by: MP | Nov 1, 2024 2:25:21 PM
So basically, the "acquitted conduct" rule can be overridden by a judge. So now we have the definitional problem that I've pointed out before AND the ability of judges to override rule. Hmmmmmm. Doesn't sound all that efficacious to me.
Posted by: federalist | Nov 1, 2024 3:25:45 PM
Just how the guideline will get applied will be interesting to see, as will how federal prosecutors argue in the handful of cases in which this guideline would limit a guideline enhancement. I expect DOJ will sometimes argue for smaller "acquitted conduct" variances than the guideline enhancement that might otherwise be applicable. And since judicial sentencing decisions are, generally speaking, still very muvh anchored to guideline calculations, there will be some impact in some cases. How much this gets litigated, in all its possible permutations, will be interesting to see.
Posted by: Doug B | Nov 1, 2024 4:21:37 PM
Doug, I assume that you still believe that the Constitution has some role here? And notice how the new rules are basically what I said in some of my previous comments.
Posted by: federalist | Nov 4, 2024 11:21:54 AM
Yep, federalist: I still think there are constitutional limits to increasing sentences based expressly on conduct rejected by a jury verdict and you still are a legend in your own mind. Do you believe the new rules are a constitutional mandate but satisfy the constitution? I think they are a constitutional mandate, but I do not think they go far enough.
Posted by: Doug B | Nov 4, 2024 1:13:11 PM
I said, paraphrasing, that the rules should have judges take jury verdicts (as a whole) into account when sentencing with stricter appellate review. That's pretty much where this landed. As for constitutional command---that idea is daft (sorry). First of all, you have the problem of what, constitutionally, constitutes "acquitted conduct" (remember my hypo) and then what the judge does with it, and how do you draw constitutional rules to govern that? Sorry, Doug, the framers weren't "obsessed with procedure."
Posted by: federalist | Nov 7, 2024 11:34:20 AM
None of what you say makes much sense here, federalist, because you are (yet again) not engaged with the actual law. Eg: what do you claim is to be reviewed by “stricter appellate review”?
Posted by: Doug B | Nov 7, 2024 1:19:24 PM
Doug, how do you figure? Obviously, if a judge uses "acquitted conduct" as a sentence enhancer, the appellate review is going to focus on that. I don't understand the criticism.
Posted by: federalist | Nov 7, 2024 3:00:26 PM
I do not understandf what "focus on that" means, federalist. Is acquitted conduct always legal or sometimes problematic as a sentencing-enhancing consideration? If sometimes problematic, when?
I do not understand what you think the legal standard is for a judge to "use" acquitted conduct, so I do not understand what you expect appellate review to be about. What is the sentencing law --- constitutional or statutory or otherwise --- that you are talking about here? I do not understand "take jury verdicts (as a whole) into account" as a statement of any law.
Posted by: Doug B | Nov 7, 2024 3:41:33 PM
Well, geez, I didn't know that I was being asked to draft regulations. As for the constitutional issues, sorry, I just don't see them. I think that a rule that narrowly defines "acquitted conduct" and creates a default position that it's not part of a guideline calculation is fine. If a judge chooses to override the default rule or just take whatever conduct into consideration on sentencing, then there will almost certainly be a fight about that on appeal (unless the conduct is on video or something)--hence my point about appellate focus. I don't know what sort of court gloss will come of this, I have no idea. In other words, the jury decision will be entitled, as a practical matter, to some respect.
Posted by: federalist | Nov 8, 2024 2:25:17 PM
The more you talk about this issue, federalist, the less understand. I'm asking you about the legal standard for judge using acquitted conduct at sentencing. Always allowed? Never? Something in-between based on what?
I get you see no constitutional problem with a judge increasing a sentence, even by decades, based on alleged conduct that resulted a jury acquittal. I disagree with that view, but that's the current law thanks to US v. Watts.
That could be the end of the story, but I surmise you think there should be some statutory and/or guideline law on the topic (or maybe you urge just common-law regulation by judges). Whatever the source of the legal standard (which itself seems important), I do not understand what you think the "fight about that on appeal" means without a definition of that legal standard. Are you suggesting this is a "fight" over whether the conduct happened? (Whether acquitted or just unharged, current law says a federal judge must find alleged conduct by the preponderance (civil) standard for a guideline adjustment.)
That the jury decision should "get some respect" does not seem like a legal standard that could be sensibly applied by sentencing courts or appellate courts. What is respecting/not respecting an acquittal? Would a decades long sentence increase based on acquitted conduct be disrepecting a jury verdict, while years or months does not?
These are hard issues, but I am still struggling to understand how you would instruct sentencing judges in cases where, say, a judge acquits a defendant charged with causing a death through drug distribution, but the prosecution urges a large sentencing increase on this basis. What would giving the jury some respect mean in this context?
Posted by: Doug B | Nov 9, 2024 9:52:02 AM
