Sentencing Law and Policy

Is it too early to try to calculate former Prez Trump's possible federal sentencing guideline range?

In one of my early articles, I discussed at length the challenges for defense attorneys presented by the intricacies of federal sentencing law.  As I explained:

From the very outset of representation, a defense attorney needs to assess the range of possible trial and sentencing outcomes for his client in order to properly craft an effective defense strategy and evaluate the prospects for striking a beneficial plea bargain.  In the federal system, this not only entails basic investigation concerning the defendant’s guilt, but also requires counsel to make an initial assessment of the defendant’s possible sentence under the Federal Sentencing Guidelines.  

This old article came to mind this morning as I contemplated whether to do a post about reports that former Prez Donald Trump is now facing a multi-count federal indictment related to his handling of classified documents.  Though I doubt former Prez Trump will be seriously considering any plea deals anytime soon, his defense lawyers should still be starting on guideline calculations.

Meanwhile, though it seems the specifics of the indictment will not be public until early next week, a few press pieces are already discussing former Prez Trump's statutory sentencing exposure based on reports of the apparent charges in his indictment: 

From Forbes, "What Crimes Was Trump Charged With In Federal Documents Case? Here’s What We Know — And How Much Prison Time He Could Face"

From the New York Post, "Here are the charges and how many years Trump faces in federal Mar-a-Lago indictment"

Even though we do not know exactly the nature of all the charges, the New York Post piece concludes by asserting that "If convicted on all seven charges, the ex-president could face a 75-year prison sentence."  Of course, adding up the maximum sentence on all counts serves as a poor metric for assessing what likely sentence an indicted person might really face.  The applicable federal guideline range is a better metric, though that range is only advisory and the sentencing of a former president (and current presidential candidate) surely raises a number of unique 3553(a) sentencing issues.

Especially because we are still awaiting word from the Supreme Court on the use of acquitted conduct at sentencing (background here and here), I am tempted to use the indictment of former Prez Trump to try to bring more attention to that issue.  Based on current law, federal prosecutors could and likely would seek to have former Prez Trump sentenced on — and have his guideline range driven by — all their allegations even if he were acquitted on six of seven counts.  Interesting times.

US Sentencing Commission releases a few updated "Quick Facts" and latest "compassionate release" data

The US Sentencing Commission has recently released some new sentencing data reports.  Long-time readers have long heard me praise the USSC for producing insightful little data documents in the form of its "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  The USSC recent posted these four new entries:

• NEW  Offenders in the Federal Bureau of Prisons (May 2023)
• NEW  Drug Trafficking (May 2023)
• NEW  Fentanyl Trafficking (May 2023)
• NEW  Fentanyl Analogue Trafficking (May 2023)

There are so many notable and interesting little data items in these little documents, and I hope to find time to mine a few data notes in the days ahead.  In addition, the USSC's website promises "more updated Quick Facts coming soon."

In addition, the USSC also recently published this updated "Compassionate Release Data Report." This report, which has information covering from October 2019 through March 2023, includes new data on sentence reduction motions under section 3582(c)(1)(A) filed with the courts and decided during the first two quarters of fiscal year 2023. Not surprisingly, this data report shows continued month-over-month declines in the number of sentence reduction motions filed and granted since the heights of the COVID pandemic. And yet, the USSC data show that there are still more of these motions being filed and being granted in recent times than was being granted before the pandemic.

"The Animal Crushing Offense Loophole"

The title of this post is the title of this new essay authored authored by Ben Buell available via SSRN. Here is its abstract:

The Preventing Animal Cruelty and Torture (“PACT”) Act of 2019 established the first federal criminal penalties targeting the most extreme forms of animal abuse.  Hailed by humane groups as a watershed moment in the development of animal welfare law, the PACT Act created a new federal crime: “animal crushing” — i.e., the crushing, burning, drowning, suffocation, and impalement of living non-human creatures.  But as the first defendants convicted under the PACT Act face sentencing in federal courts, judges and other stakeholders find little direction in the Federal Sentencing Guidelines.  The United States Sentencing Commission, which until recently lacked a voting quorum, has yet to promulgate an amendment to the Guidelines that accounts for this change in the law.  Instead, the current framework perpetuates a loophole in which the recommended penalty for animal crushing is typically less than the recommendation for offenders convicted of creating or distributing videos of that conduct.  As federal prosecutors increasingly bring charges under the PACT Act, this gap in the Guidelines will continue to lead to unjust sentencing disparities that do not adequately reflect the depravity of animal torture.

This Essay is the first to identify what it terms the “animal crushing offense loophole.”  It offers three potential solutions on the eve of the Commission’s annual amendment cycle: the creation of a new Animal Crushing Guideline, the express recognition of animal victimhood, and the use of a set of sentencing factors that distinguish among animal crushing defendants.

Oath Keepers founder gets 18 years in federal prison for role in Jan 6 riot

As reported in this AP piece, the "founder of the Oath Keepers extremist group was sentenced Thursday to 18 years in prison for orchestrating a weekslong plot that culminated in his followers attacking the U.S. Capitol in a bid to keep President Joe Biden out of the White House after the 2020 election." Here is more:

Stewart Rhodes is the first person charged in the Jan. 6, 2021, attack to be sentenced for seditious conspiracy, and his sentence is the longest that has been handed down so far in the hundreds of Capitol riot cases.

It’s another milestone for the Justice Department’s sprawling Jan. 6 investigation, which has led to seditious conspiracy convictions against the top leaders of two far-right extremist groups authorities say came to Washington prepared to fight to keep President Donald Trump in power at all costs.

Before handing down the sentence, the judge told a defiant Rhodes that he is a continued threat to the U.S., saying it’s clear Rhodes “wants democracy in this country to devolve into violence.”

“The moment you are released, whenever that may be, you will be ready to take up arms against your government,” U.S. District Judge Amit Mehta said....

Prosecutors had sought 25 years for Rhodes, who they say was the architect of a plot to forcibly disrupt the transfer of presidential power that included “quick reaction force” teams at a Virginia hotel to ferry weapons into D.C. if they were needed. The weapons were never deployed.

In remarks shortly before the judge handed down the sentence, Rhodes slammed the prosecution as politically motivated, noted that he never went inside the Capitol and insisted he never told anyone else to do so. “I’m a political prisoner and like President Trump my only crime is opposing those who are destroying our country,” Rhodes said.

In a first for a Jan. 6 case, U.S. District Judge Amit Mehta agreed with prosecutors to apply enhanced penalties for “terrorism,” under the argument that the Oath Keepers sought to influence the government through “intimidation or coercion.”  Judges in previous sentencings had shot down the Justice Department’s request for the so-called “terrorism enhancement” — which can lead to a longer prison term — but Mehta said it fits in Rhodes’ case.

Prosecutors argued that a lengthy sentence is necessary to deter future political violence. Assistant U.S. Attorney Kathryn Rakoczy pointed to interviews and speeches Rhodes has given from jail repeating the lie 2020 election was stolen and saying it would be again in 2024. In remarks just days ago, Rhodes called for “regime change,” the prosecutor said....

A lawyer for Rhodes, who plans to appeal his conviction, said prosecutors are unfairly trying to make Rhodes “the face” of January 6. Attorney Phillip Linder told the judge that Rhodes could have had many more Oath Keepers come to the Capitol “if he really wanted to” disrupt Congress’ certification of the Electoral College vote. “If you want to put a face on J6 (Jan. 6), you put it on Trump, right-wing media, politicians, all the people who spun that narrative,” Linder said.

Another Oath Keeper convicted alongside Rhodes in November — Florida chapter leader Kelly Meggs — was expected to receive his sentence later Thursday. Two other Oath Keepers, acquitted of the sedition charge but convicted of other offenses, will be sentenced Friday. And four other members found guilty of seditious conspiracy at a second trial in January are scheduled to be sentenced next week....

Rhodes’ sentence may forecast what prosecutors will seek for former Proud Boys national chairman Enrique Tarrio, who was convicted of seditious conspiracy alongside other leaders of his far-right group this month for what prosecutors said was a separate plot to block the transfer of presidential power. The Proud Boys will be sentenced in August and September.

Rhodes, 58, and the other Oath Keepers said there was never any plan to attack the Capitol or stop Congress from certifying Biden’s victory. The defense tried to seize on the fact that none of the Oath Keepers’ messages laid out an explicit plan to storm the Capitol. But prosecutors said the Oath Keepers saw an opportunity to further their goal to stop the transfer of power and sprang into action when the mob began storming the building....

Before Thursday, the longest sentence in the more than 1,000 Capitol riot cases was 14 years for a man with a long criminal record who attacked police officers with pepper spray and a chair as he stormed the Capitol. Just over 500 of the defendants have been sentenced, with more than half receiving prison time and the remainder getting sentences such as probation or home detention.

Rhodes will not only be appealing his convictions, but surely also this sentencing.  The application of the guidelines' 'terrorism enhancement" will surely be part of any sentencing appeal, though I suspect there will be plenty of other issues raised for the DC Circuit to consider.

Prior related posts:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy
• Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers 

UPDATE with additional sentencing:  This CBS News piece, which is mostly about the Rhodes sentencing, includes this news about a co-defendant's subsequent sentencing:

Hours after Rhodes was sentenced, his co-defendant Kelly Meggs, the leader of the Florida chapter of the Oath Keepers, was given a sentence of 12 years behind bars. Meggs was convicted of seditious conspiracy alongside Rhodes last November. Prosecutors alleged he spearheaded the effort to enter the Capitol.

Extended discussion of issues surrounding upcoming federal sentencing of Oath Keepers

Over at Lawfare, Roger Parloff has this remarkable new piece titled "Should Nine Oath Keepers Receive Terror-Enhanced Sentences?". This lengthy piece examines an array of intricate sentencing issues and it starts this way:

This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy.  The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight.  Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.

The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents.  Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here.

Among many other items noted, this piece notes that, in some of these cases, federal prosecutors are seeking enhanced punishment based on acquitted conduct:

Three of the nine defendants being sentenced were acquitted of seditious conspiracy.  One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.

It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard — which is all that is required for sentencing purposes.  Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner....

Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him — just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.

Prior related post:

• Big spread in sentencing recommendations for Oath Keepers founder convicted of seditious conspiracy 

US Sentencing Commission publishes detailed retroactivity analysis for its amendments to federal guidelines' criminal history rules

In this post last month, I provided some details on the US Sentencing Commission's proposed consequential amendments to alter how criminal history is assessed and calculated under the federal sentencing guidelines. The big ticket items in the proposed amendments concern "status points" and "zero-point offenders"; as detailed here, the Commission has officially sought comment on whether it should make these key parts of its new criminal history amendment "available for retroactive application."

Today, the USSC publish on its website this new 48-page memo titled "Retroactivity Impact Analysis of Parts A and B of the 2023 Criminal History Amendment."  Here is  how the memo gets started:

On April 27, 2023, the United States Sentencing Commission submitted to Congress an amendment to the federal sentencing guidelines revising two criminal history provisions found in Chapter Four of the Guidelines Manual.  Specifically, Part A of the amendment makes targeted changes to reduce the impact of providing additional criminal history points for offenders under a criminal justice sentence (commonly known as “status points”), and Part B, Subpart 1 provides a twolevel downward adjustment for certain offenders with zero criminal history points under the guidelines (“zero-point offenders”).  Because these two provisions reduce the sentencing range for some offenders, the Commission is statutorily required to determine whether either or both of these parts of the amendment should be applied retroactively to previously sentenced, imprisoned defendants.  As required by its Rules of Practice and Procedure,  the Commission voted at the April 5, 2023 public meeting to instruct staff to prepare a retroactivity impact analysis to aid the Commission in determining whether to do so.  This memorandum provides that analysis.  

Part I of this memorandum summarizes the operation of the 2023 criminal history amendment applicable to “status points” and “zero-point offenders.”  Part II of the memorandum provides background on the statutory authority and guidelines policy statement governing retroactive application of amendments to the federal sentencing guidelines, noting the factors to be considered in the Commission’s decision regarding retroactivity. Part III of the memorandum provides an estimate of the impact of Parts A and B, Subpart 1 of the amendment if the Commission were to authorize the courts to apply these parts of the amendment retroactively.  Part IV of this memorandum describes how the analysis was performed.

Here is the summary of the details of the USSC's analysis of who would benefit from retroactive application of its proposed criminal history amendments:

Staff estimates that there are 50,545 offenders in the custody of the Federal Bureau of Prisons (BOP) as of January 28, 2023, who were assigned status points at sentencing (“status points offenders”)....  Staff estimates that approximately one-quarter (22.7%, n = 11,495) of the 50,545 status points offenders would have a lower guideline range if the Commission were to make Part A of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 106 months, a reduction of 14 months (or 11.7%).  The offenders would be released over a period of many years....

Staff estimates that there are 34,922 offenders in BOP custody as of January 28, 2023, for whom no criminal history points were assigned under Chapter Four, Part A of the Guidelines Manual when sentenced for their instant offense.  Of those 34,922 zero-point offenders, 12,574 meet the criteria in Part B, Subpart 1 of the 2023 Criminal History Amendment.  Staff estimates that slightly more than half (57.8%, n = 7,272) of those offenders would have lower guideline range if the Commission were to make Part B, Subpart 1 of the 2023 criminal history amendment retroactive and, therefore, would be eligible to seek a modification of sentence under 18 U.S.C. § 3582(c)(2).  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).  The offenders would be released over a period of many years.

Putting these particulars together in a very rough way, it seems that the USSC is estimating that just under 19,000 thousand current federal prisoners would be able to get just under 1.2 years off their sentences if these new criminal history amendments are made retroactive.  That adds up to a total of about 23,000 prison years saved were these new guideline amendments made retroactive and these estimated impacts become reality.

US Sentencing Commission releases "geographic sentencing data" from FY22

I just saw that the US Sentencing Commission this week posted here its "geographic sentencing data" for Fiscal Year 2022.  The USSC webpage has links to localized data reports that provide all sorts of fascinating "data slices" about the federal sentencing world. Here is how the webpage explains the over 100 localized reports:

These reports examine federal sentencing statistics from each judicial district, the districts within each judicial circuit, and the districts within each state. Each report compares the statistics from the respective district, circuit, or state to the nation as a whole. Each set consists of the following figure and tables:

• Figure A - Federal Offenders by Type of Crime
• Figure B - Distribution of Primary Drug Type in Federal Drug Cases
• Table 1 - Distribution of Federal Offenders by Type of Crime
• Table 2 - Guilty Pleas and Trials in Each Circuit and District
• Table 3 - Guilty Pleas and Trials by Type of Crime
• Table 4 - Sentence Type by Type of Crime (National)
• Table 5 - Sentence Type by Type of Crime (District)
• Table 6 - Incarceration Rate of U.S. Citizen Offenders Eligible for Non-Prison Sentences by Type of Crime
• Table 7 - Sentence Length by Type of Crime
• Table 8 - Sentence Imposed Relative to the Guideline Range
• Table 9 - Sentence Imposed Relative to the Guideline Range in Each Circuit and District
• Table 10 - Sentence Imposed Relative to the Guideline Range by Type of Crime

Just a few clicks on some of the circuit reports and glances at Figure A highlight some interesting (though perhaps unsurprising) data about how very different caseload mixes can be in different regions.  For example, in the Fifth Circuit's district courts, nearly 60% of federal cases sentenced in FY 2022 were immigration cases, while about 20% were drug cases and less than 8% were firearm cases.  But, in the First Circuit's district courts, nearly 50% of the federal cases sentenced in FY 2022 were drug cases, while nearly 13% were firearm cases and less than 6% were immigration cases.

Eighth Circuit panel seemingly misreads the US Sentencing Commission's sentence reduction guideline amendment

I have previously blogged here and here about the US Sentencing Commission's decision to amend the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)."  There are lots of intricate elemens to this amendment, and one key provision concerned the authority of judges to consider "changes in the law" as a basis to satisfy the statutory requirement of finding "extraordinary and compelling reason" for a sentence reduction. 

This issue was the only one clearly dividing the new Commissioners: four Commissioners voted for a new provision -- § 1B1.13(b)(6) -- that expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances."  Three other Commissioners voted againt this provision because they did not believe  the USSC should ever allow "changes in the law" to be considered in determining whether a defendant presents and "extraordinary and compelling reason" for a sentence reduction.

A helpful reader sent me an Eighth Circuit opinion, US v. Rodriguez-Mendez, No. 22-2399 (8th Cir. April 25, 2023) (available here), that seems to misread just what the USSC has done with this amendment to the reduction-in-sentence guideline.  In this case, the panel first explains that the Eighth Circuit had pervious "held that a non-retroactive change in law regarding sentencing ...  cannot contribute to a finding of ‘extraordinary and compelling reasons’ for a reduction in sentence under § 3582(c)(1)(A)."  Then the panel rejects the defendant's argument that the Supreme Court's opinion in Concepcion v. US, 142 S. Ct. 2389 (2022), required changing that prior holding.  (I disagree with that reading of Concepcion, as explained here, but a number of courts have adopted it.)  

Then, in the last few paragraphs of this new Rodriguez-Mendez opinion, the Eighth Circuit panel mentions that the Sentencing Commission’s proposed amendment to § 1B1.13.  But after quoting key provisions of the amendment, the panel states (with my emphasis added): "It thus appears that the Commission proposes to adopt (or to express more clearly) that nonretroactive changes in sentencing law may not establish eligibility for a § 3582(c)(1)(A) sentence reduction, as we held in Crandall, but may be considered in exercising a court’s discretion whether to grant compassionate release relief to an eligible defendant, consistent with the Supreme Court’s decision in Concepcion."   But this seems flatly wrong because, as noted above, the new language of § 1B1.13(b)(6) expressly states that, in certain circumstances, "changes in the law ... may be considered in determining whether the defendant presents an extraordinary and compelling reason."  In other words, the Commission in this new guideline is providing that nonretroactive changes in sentencing law CAN establish eligibility for a § 3582(c)(1)(A) sentence reduction in some circucumstances.  (And, notably, the defedant in this case, Rodrigo Rodriguez-Mendez, might well meet the circumstances the Commission set forth for "change in the law" to provide the basis for a sentence reduction.)

I have argued in this post that the new amended provision of "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" could and should be seen to now overrule prior circuit rulings that changes in law cannot provide a basis for a sentence reduction.  But some may reasonably claim that the amendment to § 1B1.13 only should be given effect after November 1, 2023, which is when all the new guideline amendments will become effective.  But I do not think anyone can reasonably claim, as the Eighth Circuit panel seems to do here, that the new amended guideline serves to codify the claims of some circuits that changes in law can never provide a basis for a sentence reduction.

Notable new Roll Call review of congressional views of US Sentencing Commission's debate over sentence reductions

Roll Call has this notable new piece discussing the debate over the new federal sentencing guidelines for sentence reduction motions.  The article mostly discusses the politics surrounding reform rather than all the particulars of the legal reforms, and I am not sure it breaks any new ground.  But it is still a useful read for those keeping up on these matters, even though the text and even the headline of the piece is a bit off legally.  Here are excerpts:

A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law, an approach Republican senators warned will hamper, if not destroy, the possibility of future criminal justice legislation.

The policy approved this month by the low-profile U.S. Sentencing Commission is deep in the legal weeds, giving guidance for federal judges on how to interpret a section of a sweeping bipartisan overhaul of the federal criminal justice system passed in 2018.  But the debate on that approach, which goes into effect in November unless Congress disapproves it, offers an inside look at the negotiations and challenges for lawmakers who want to take more steps to address racial inequality in the criminal justice system through sentencing changes...

In the 2018 criminal justice law, Congress allowed federal inmates to directly ask courts to release them from prison for extraordinary and compelling reasons. Judges released thousands of inmates through that mechanism during the COVID-19 pandemic.

Under the sentencing guidance the commission adopted this month, a change in a law could be potential grounds for reducing a defendant’s sentence. Specifically, judges could consider reducing the sentence of an inmate who has served 10 years of an “unusually long sentence” if there is a “gross disparity” between their sentence and sentences imposed under new law.

Senate Majority Leader Mitch McConnell of Kentucky and Sen. Charles E. Grassley of Iowa, who was the lead Republican on the push for the 2018 law, warned the commission that the guidance would cause problems for future bills that would reduce prison sentences. McConnell in a February letter to the commission said that no issue was more controversial during the debate on the 2018 law than whether it would be applied retroactively to those already in prison. Congress is extremely careful with use of retroactivity — if lawmakers want something to be retroactive, they typically say so clearly in the law — and so guidance that approves of judges doing so would “poison the well” in Congress, he said....

The guidelines went through changes following the comments from Senate Republicans and Democrats, but the thrust of the provision remained the same and the commission voted for guidelines that approve of judges retroactively considering certain sentences.

I am inclined to dicker with the very first clause of the article — "A federal agency has given judges a new tool to reduce unusually long sentences for some prisoners if there is a change in a law" — because it was Congress who created the tool to reduce sentences under the (so-called compassionate release) statutory provisions of 18 U.S.C. § 3582(c)(1)(A) and Congress did so way back in 1984.  In addition, as this article notes, the FIRST STEP Act of 2018 (another act of Congress) allowed this tool to function more effectively by allowing prisoners to make motions directly in court for sentence reduction without awaiting a filing by the Bureau of Prisons. 

Moreover, since passage of the FIRST STEP Act, many circuits have ruled that a change in law could be potential grounds for reducing a defendant’s sentence in any and every case, whereas the new guidelines promulated by the US Sentencing Commission significantly restricts the circumstances under which a change of law can be the basis for a sentencing reduction.  Thus, I think a more accurate openning line might have been something like: "A federal agency has narrowed the reach of a long-standing tool that Congress provided to judges as a means to reduce sentences which had become far more widely used after passage of the bipartisan FIRST STEP Act."

US Sentencing Commission releases FY 2023 first quarter sentencing data

Today the US Sentencing Commission released on its website its latest quarterly data report which sets forth "Preliminary Fiscal Year 2023 Data Through December 31, 2022."  These new data provide the latest accounting of how the COVID era continues to echo through federal sentencing.  For example, as reflected in Figure 2, while the three quarters prior to the pandemic averaged roughly 20,000 federal sentencings per quarter, the three quarters closing out 2020 had only between about 12,000 and 13,000 cases sentenced each quarter.  Calendar year 2021 had a partial rebounding of total cases sentenced, but the "new normal" seems to be just over 15,000 total federal cases sentenced each quarter (and Figure 2 shows that a decline in immigration cases primarily accounts for the decrease in overall cases sentenced).

As I have noted before, the other big COVID era trend was a historically large number of below-guideline variances being granted, and this trend has now extended over the last 10 quarters of offiical USSC data (as detailed in Figures 3 and 4).  I suspect this trend is just another facet of the different caseload and case mix.  In this most recent quarter, the official data show that only 42.2% of all federal sentences are imposed "Within Guideline Range."  This number is not an historic low, but it continues the modern statistical reality that now more federal sentences are imposed outside the guideline range (for a wide array of reasons) than are imposed inside the range.

There are a lot of interesting data and stories to mine from the last USSC data report, but for some reaosn I was especially struck by the data on drug sentencing reflected in Figures 11 and 12.  These figures show, for the latest quarter, that over 47% of all federal drug sentencings involved methamphetamine, which is more of the drug sentencingcaseload than powder and crack cocaine, heroin and fentanyl combined.  Morever, the average sentence for all those meth cases is over eight years in prison, whereas the average for all the others is under six years.  In other words, the federal "war on drugs" these days is much more focused upon, and imposes longer prison sentencing upon, the meth defendants than anyone else. 

Highlighting US Sentencing Commission's significant amendments to federal guidelines' criminal history rules

The highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission last week (basics here) concerns a major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)" (discussed here).  But the most consequential amendment might prove to be new provisions altering how criminal history will impact guideline calculations.  USSC Chair Reeves discussed in his statement at last week's hearing (just some of) the particulars:

[W]e have proposed addressing two discrete ways in which the sentencing guidelines punish people for having a “criminal history.”  The first proposal aimed to reduce or eliminate the use of “status points,” which are sentencing enhancements given to people who committed a crime while on parole or probation.  As we heard from many commenters, status points often amount to a form of “double penalty.”...  Moreover, Commission research strongly suggests that status points’ ability to predict recidivism -- a core justification for their use -- may be extremely weak.

In light of all this, the Commission’s final policy eliminates status points in the vast majority of criminal cases. For a limited category of defendants with extensive criminal histories, we are cutting the effect of status points in half, reflecting the idea that this tool may sometimes achieve other goals beyond predicting recidivism.

The second “criminal history” proposal we issued sought to fulfill a core directive Congress gave the Commission at its inception.  That directive says that, in general, “a first offender who has not been convicted of a crime of violence or an otherwise serious offense” should not be incarcerated.  The Commission’s proposal sought to define who met this standard and what the consequences for meeting this standard should be.

Ultimately, we decided to answer both questions broadly.  Our final policy provides a larger reduction in sentence for a larger category of people than the status quo.  While we agreed to limit this reduction in a limited set of circumstances, we also agreed to give judges discretion to expand non-carceral options to more people.

These two items concerning "status points" and "zero-point-offenders" are the big ticket criminal history matters, though the Commission also adds to its examples of overrepresented criminal history cases involving criminal history points resulting from marijuana possession convictions. 

As detailed here, the Commission has officially sought comment on whether it should make the key parts of its new criminal history amendment "available for retroactive application."  The Commission states that a "retroactivity impact analysis will be made available to the public as soon as practicable."  I suspect that analysis will show these criminal histpry changes could impact many thousands, perhaps tens of thousands, of federal prisoners.  This June 2022 report from the Commission detailed that "over one-third of federal offenders (37.5%) received two 'status points' under §4A1.1(d) as part of their criminal history scores."  And this 2022 USSC Quick Facts accounting of federal prisoners noted that almost 30% "have little or no prior criminal history."  Though not all these populations would clearly benefit from retroactive application of the new criminal history rules, a sizeable number likely would.   

Retroactivity dynamics aside, it appears from Table 23 in the USSC's latest annual data on criminal history scores that over 60% of federal defendants sentences in fiscal year 2022 had either had zero criminal history points (33.9%) or received status points (26.7%).  In other words, the data suggest that more future federal defendants will be impacted by these criminal history amendments than won't be.  In short, these are relatively small criminal history changes sure to have a relatively big impact.

Has the US Sentencing Commission now "overruled" circuit decisions saying changes in law cannot provide a basis for 3582(c)(1)(A) sentence reduction?

Perhaps the highest profile amendment to the federal sentencing guidelines promulgated by the US Sentencing Commission yesterday (basics here) concerns the major revision of § 1B1.13 setting terms for a "Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A)."  This "policy statement" structures the availability of what are often called "compassionate release" motions that, after the FIRST STEP Act, can be brought to sentencing courts directly by federal prisoners.  Notably, when introducting the Commission's amendments to § 1B1.13, USSC Chair Reeves stressed in his statement that the term compassionate release "is a 'misnomer'" because § 3582(c)(1)(A) sets forth a more general "sentence-reducing tool" authorizing judges "to modify sentences whenever new 'extraordinary and compelling' reasons arise."

This Reuters article (which uses the compassionate release "misnomer") provide a brief account of the new amendment to guideline § 1B1.13:

The U.S. Sentencing Commission approved new guidelines on Wednesday that will expand federal inmates' ability to qualify for compassionate release from prison.  The new policy, approved in a vote of 4-3, was part of a broader package of amendments, and represent the most sweeping criminal justice reforms the commission has enacted in more than four years....

The new compassionate release guidelines approved on Wednesday expanded the criteria for what can qualify as "extraordinary and compelling reasons" to grant compassionate release, and it will give judges more discretion to determine when a sentence reduction is warranted.  Among the new categories that could make an inmate eligible for compassionate release is if he or she becomes the victim of sexual assault by a corrections officer.

Three members of the panel opposed the final policy, saying they disagreed with a provision that could allow judges to grant compassionate release to inmates if changes to federal sentencing laws renders their prison term inequitable. The policy "makes a systemic, structural change without congressional authorization," commission member Candice Wong said.

Though there are lots of new and important elements to the new § 1B1.13, one particular issue that has generated a particularly interesting debate in the circuit courts (and before the Commission) is whether a district judge can rely on a "change in the law" to grant a 3582(c)(1)(A) sentencing reduction.  This question has deeply divided the circuits; as discussed here, the Sixth Circuit a few months ago rendered a big divided en banc ruling in US v. McCall which held, as a matter of statutory interpretation, "that nonretroactive changes in sentencing law cannot be 'extraordinary and compelling reasons' that warrant relief" pursuant to 3582(c)(1)(A). 

But now the US Sentencing Commission, which Congress in 28 U.S.C. § 994(t) expressly gave the responisbility to "describe what should be considered extraordinary and compelling reasons for sentence reduction," has expressly decided via its new amendments to § 1B1.13 that a "change in the law" legally can and sometimes should be the basis for a 3582(c)(1)(A) sentencing reduction.  Specifically, here is the interesting policy statement provision on this issue in the new guideline (with emphasis added):

(6) UNUSUALLY LONG SENTENCES.—If a defendant received an unusually long sentence and has served at least 10 years of the term of imprisonment, a change in the law (other than an amendment to the Guidelines Manual that has not been made retroactive) may be considered in determining whether the defendant presents an extraordinary and compelling reason, but only where such change would produce a gross disparity between the sentence being served and the sentence likely to be imposed at the time the motion is filed, and after full consideration of the defendant’s individualized circumstances.

In other words, the US Sentencing Commission has decided, contra to the position of the Sixth Circuit and some other circuits, that a change in law can serve as an extraordinary and compelling reason for sentence reduction, though the Commission here limits such a "law-change" reason to cases in which a defendant has already served "at least 10 years" of an "unusually long sentence" and the law change "would produce a gross disparity" in sentencing outcomes. 

Though one might well debate the wisdom and reach of how the new guideline seeks to limit when "a change in the law" can provide an extraordinary and compelling reason for sentence reduction, it is beyond debate that the US Sentencing Commission, the expert agency tasked expressly by Congress to "describe what should be considered" reasons for a 3582(c)(1)(A) sentence reduction, has now explicitly decided that at least sometimes a "change in law" CAN statutorily be a proper basis for a reduction under the statute.  In this way, I answer the question in the title of this post as "yes": the US Sentencing Commission's promulagation of this new § 1B1.13 provision serves to functionally "overrule" any and all court precedents that nonretroactive changes in law cannot be the basis for a statutory sentence reduction under 18 U.S.C § 3582(c)(1)(A).

UPDATE:  Thanks to some feedback from a number of helpful readers, I realized it would be useful to note that some circuits speaking to this issue expressly recognized that any court accounting of "extraordinary and compelling reason" would be only a gap-filler until the Commission amended § 1B1.13 and the Justice Department has also said as much when opposing Supreme Court review of the circuit split on this issue.  Professor Erika Zunkel's testimony to the USSC at pp. 9-13 speaks effectively to these issues at great and effective length for anyone interested in a deeper dive.

"Prosecutors as punishers: A case study of Trump-era practices"

The title of this post is the title of this notable new article authored by Mona Lynch for the journal Punishment & Society that is now available online. Here is its abstract:

Recent punishment and society scholarship has addressed the limits of policy reforms aimed at reducing mass incarceration in the U.S.  This work has focused in particular on the political dimensions of penal legal reform and policy-making, and the compromises and shortcomings in those processes.  Nearly absent in this scholarship, however, has been empirical and theoretical engagement with the role of front-line prosecutors as facilitators and/or resistors to downsizing efforts.

Using the case of the U.S. federal criminal legal system's modest efforts to decrease the system's racially disparate and punitive outcomes, this paper elucidates the fragile nature of such reforms by delineating the critical role that front-line prosecutors play in maintaining punitive approaches.  Focusing specifically on federal prosecutorial policy and practices in the Trump era, I draw on a subset of data from an interdisciplinary, multi-methodological project set in distinct federal court jurisdictions in the U.S. to examine how front-line prosecutors were able to quickly reverse course on reform through the use of their uniquely powerful charging and plea-bargaining tools.  My findings illustrate how federal prosecutors pursued more low-level defendants, and utilized statutory “hammers,” including mandatory minimums and mandatory enhancements to ensure harsh punishments in a swift return to a war-on-crime.

US Sentencing Commission promulgates numerous consequential new guideline amendments (while defering resolution of other big issues), with big division on compassionate release

As USSC Chair Judge Carlton Reeves stressed in this lengthy and moving openning statement, the US Sentencing "Commission has done an extraordinary amount of work over the last six months."  That work in part culminated today in the promulgation of numerous consequential new guideline amendments, though the USSC also defering resolution of other big issues.  Acquitted conduct sentencing (recently flagged here) is one of the big topics that was deferred for future amendment cycles.  But there were an array of other critical issues tackled through a total of eleven intricate guideline amendments. 

Notably, the new bipartisan fully loaded Commission voted unanimously in favor of ten of the eleven intricate guideline amendments that were promulgated today.  But arguably the most consequential of the amendments to the federal sentencing guidelines — namely the so-called commpassionate release guideline, formally "§ 1B1.13 - Reduction in Term of Imprionment under 18 U.S.C § 3582(c)(1)(A) (policy statement)" — divided the new Commissioners.  Specifically, the four Democratic appointees to the Commission voted to promulgate an amendment that provides federal judges with relatively broad authority to reduce sentences pursuant to 3582(c)(1)(A), whereas the three Republican appointees to the Commission voted againt this amendment.  

As federal sentencing gurus know, none of these amendments will formally become guidelines law until November 1, 2023.  And, until that time, Congress has authority to enact legislation to reject any or all of these amendments in order to prevent them from becoming law.  The ten amendments that received unanimous support from all the new Commissioners seem highly unlikley to be subject to override by Congress.  But given the divided vote over the commpassionate release guideline, as well as all the important issues that this guideline touches upon, I am  quite uncertain about whether Congress might seriously seek to weigh in on this topic in the coming months.  (I am nearly certain that some notable members of Congress will express some criticism of the proposed amendment and that some notable members of Congress will express support for the proposed amendment.)

I plan to do some separate posts on some of the individual amendnments (and on some of the non-amendments and some of the speeches by various members of the Commission) in coming days and weeks.  But before concluding this post, I think it worth flagging the reality that, even though none of these amendments can become formal law until November 1, 2023, federal judges certainly can — and I generally think should — consider the wisdom reflected in these new proposed guidelines right away.  Whether the topic is compassionate release or firearms  or criminal history or fake pills or other matters addressed by these amendments, federal judges currently have lots of discretion to consider an array of factors at sentencing and the grave responsibility of trying to exercise their sentencing discretion wisely.  The Commission is the expert sentencing policy-making body in the federal system, and its proposals sensibly merit at least thoughtful consideration by sentencing judges even before they become law.

UPDATE:  The US Sentencing Commission now have this official press release on its webstite with this extended heading: "'Back In Business' U.S. Sentencing Commission Acts To Make Communities Safer & Stronger: New Policies Increase First Steps Toward Second Chances, Take Targeted Action On Gun Trafficking And Fentanyl, And Expand Alternatives To Incarceration." Here is most of the text of the press release:

Equipped with a quorum of Commissioners for the first time since 2018, the bipartisan United States Sentencing Commission voted today to promulgate amendments to the federal sentencing guidelines. “The Sentencing Commission is back in business,” said Chair Carlton W. Reeves. “Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” Watch public meeting. 

During the pandemic, federal judges saved lives using their authority in 18 U.S.C. § 3582(c)(1)(A) to reduce sentences for incarcerated people facing “extraordinary and compelling” circumstances like certain risks posed by COVID-19.  Responding to the First Step Act’s directive to increase the use and transparency of this tool, the Commission updated its guidelines to reflect lessons learned since the pandemic, ensure judges can continue to take first steps toward second chances for those who deserve them, and reunite families through appropriate reentry.  “Judges are in the best position to decide if someone deserves to have the length of their sentence revisited,” said Chair Reeves. “This policy trusts courts to continue doing what is right.”

Since the Commission last had a quorum, communities across the country have struggled with the ills of gun trafficking and fentanyl.  Congress directed the Commission to act on gun trafficking through the Bipartisan Safer Communities Act of 2022, while the Drug Enforcement Administration asked the Commission to evaluate possible action on fentanyl.  In response, the Commission voted to take targeted action on both issues. “The problems of gun trafficking and drug overdoses demand a comprehensive response,” said Vice Chair Claire Murray. “I am proud to say the Commission is doing its part by ensuring we have proportional sentences for serious offenses.”

The Commission is also revising guidance to courts regarding people facing their first federal conviction.  Relying on data and extensive analysis about recidivism, the Commission is acting to maximize public safety and encourage consideration of alternatives to incarceration.  “Our new policies revise the sentencing guidelines based on empirical research and experience,” said Vice Chair Laura Mate.  “This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Among the many other policies issued by the Commission are those that seek to address ghost guns, sexual abuse of incarcerated people by correctional employees, clarify acceptance of responsibility points for defendants, and implement criminal justice legislation passed by Congress.  “The policies issued today reflect the wide spectrum of views we received through public hearing testimony and tens of thousands of letters,” said Chair Reeves. “The policies issued today prove, beyond a doubt, that when you speak to the Commission, you will be heard.”

While the newly reconstituted Commission concludes its first policymaking cycle, there is more work to do. In the year to come, the Commissioners will continue to study a number of proposed policies, including those regarding how the guidelines treat acquitted conduct and the “categorical approach” to the career offender guideline. In the meantime, the Commission will send final amendments to Congress by May 1, 2023. If Congress does not act to disapprove the amendments, they will take effect on November 1, 2023. 

Among many big amendment questions, will the new USSC promulgate new guidelines to limit acquitted conduct enhancements?

As flagged in this post a few weeks ago, we can expect the US Sentencing Commission to vote to promulgate its first set of new guidelines amendments in five years later today.  Specifically, the announcement here on the Commission's website notes that "a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m." and that the agenda will include a "Vote to Promulgate Proposed Amendments."  As I have explained before, and as detailed in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year.  One of those possible amendments in newly discussed in this lengthy Bloomberg Law piece titled "Sentencing Commission to Vote on Handling of Acquitted Conduct."  Here are excerpts (with links from the original):

The US Sentencing Commission is expected on Wednesday to vote on an amendment that would eliminate acquitted conduct from the definition of relevant conduct for purposes of calculating the guidelines range.

Judges would still be able to consider acquitted conduct that was proven beyond a reasonable doubt or admitted by the defendant in plea proceedings or a colloquy.

The amendment has wide support from the defense bar, current and former federal judges, and three US Senators, although some say it won’t completely solve the problem.

Others, including the Victims Advisory Group, oppose the changes, arguing that courts need to be able to consider the full context of an offense. In its opposition, the Department of Justice emphasized the difficulty judges may have in determining what conduct they can or can’t consider.

In addition to perhaps addressing acquitted conduct, the Commission will also certainly put forward amendments concerning the grounds for compassionate release which will certainly impact many prisoners nationwide. A number of other possible amendments being considered by the Commission could also prove quite consequential. Interesting times.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 
• US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments 

So very excited for "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order"

I am so very pleased and excited to start blogging about a day-long program that I have helped put together for next month that should be a "must-see" activity for anyone in the sentencing space, especially in the New York City area.  Specifically, on April 24, 2023, as detailed on this New York City Bar Association webpage and in this complete program agenda, we are doing a full day of sentencing-focused panels as part of an event titled "Frankel at 50: A Half-Century’s Perspective on Criminal Sentences: Law Without Order."   Here is the basic event decription from the NYCBA webpage:

Published in 1973, Judge Marvin Frankel’s book Criminal Sentences: Law Without Order, assailed just about every aspect of existing arbitrary sentencing practices and advocated for the creation of a “commission on sentencing” to be tasked with developing guidelines for “the numerous factors affecting the length or severity of sentences.”  Judge Frankel’s book paved the way for modern sentencing reform, spurring the enactment of numerous sentencing reforms at the state level and the passage of the Sentencing Reform Act of 1984 which completely rebuilt the federal sentencing system.  As a result, Criminal Sentences: Law Without Order has affected tens of millions of defendants sentenced in state and federal courts over the last half-century.

At the same time, some have suggested his proposals — or at least their implementation — have contributed significantly to the growth of prison populations in recent decades.  Reflecting on Judge Frankel’s book a half-century later can provide profound insights and perspectives on how modern sentencing has evolved and where it should be headed.  The one-day symposium will bring together sentencing experts from academia and law practice to discuss various aspects of Judge Frankel’s ideas, how they have played out over the last half-century, and whether they should guide us for the next fifty years.

This full-day event will include a light breakfast, multiple plenary panels, lunch, two sets of concurrent panels, a fireside chat, and a closing reception.  Please find the day's complete agenda here.

If you click through to see the full program, you will see the extraordinary array of topics planned for discussion by an extraordinary array of judges and practitioners and academics.  I feel incredible fortunate to have had the chance to put this program togther with some many helpful folks assocaited with the Council on Criminal Justice, the Drug Enforcement and Policy Center, and the New York City Bar Association. 

Because this is an in-person event, folks will need to make their way to NYC to participate (but the program certainly justifies the trip).  In addition, in conjunction with this event, the we have solicited a big set of article for a "Frank at 50" special issue of the Federal Sentencing Reporter.  So, though not the same as a trip to the Big Apple, folks who cannot make it to the event can still keep an eye out for a future FSR issue on these topics.

US Sentencing Commission schedules meeting for April 5, 2023, for promulgation of proposed guideline amendments

Via email I learned of the official announcement of the official public meeting when we can expect the US Sentencing Commission to vote to promulgate its first set of new amendments in five years.  The announcement is here on the Commission's website, and reads as follows:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public meeting of the Commission was scheduled for Wednesday, April 5, 2023, at 2:00 p.m.  The meeting will be held at the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., in the Commissioners' Conference Room of Suite 2-500 (South Lobby).  The meeting will be streamed live and recorded.

The agenda follows:

• Vote to Adopt January 2023 Meeting Minutes
• Report from the Chair
• Report from the Staff Director
• Vote to Promulgate Proposed Amendments
• Adjourn

As highlighted in some of the prior posts below, there has been significant debate about the significant draft proposed amendments that were released by the USSC earlier this year. I am going to be very interested in seeing how the Commissioners settle on final proposed amendments (which will provide some insight as to how the various Commissioners are settling into their roles). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments
• US Sentencing Commission posts over 1600 pages of public comment on proposed amendments 

US Sentencing Commission posts over 1600 pages of public comment on proposed amendments

Perhaps unsurprisingly in light of a whole lot of notable proposed amendments to the US Sentencing Guidelines, the US Sentencing Commission received a whole lot of public comment in response to its "Notice and request for public comment" on these amendments.  Helpfully, for folks interested in seeing some of the highlights, the USSC has made big sample available here with lots of helpful links to each of the issues covered and with this explanation:

The Commission reviews and catalogs all public comment submissions for future reference and official recordkeeping purposes.  A representative sample of public comment is carefully selected, redacted, and posted online to provide the public with the kind of information considered by the Commissioners during their deliberations." 

Especially because I am distracted by a few different and distinct obsessions this weekend, I am certain I will not get a chance to review much of the commentary anytime soon.  But I welcome folks using the comments to flag any especially interesting comments (or any predictions they may have about what the final amendment will look like). 

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

USSC publishes 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics

Via email this morning, I learned that the US Sentencing Commission published on its website today its 2022 Annual Report and latest Sourcebook of Federal Sentencing Statistics.  Both data-rich publications have lots of interesting statistics providing lots of interesting views of the realities of (fiscal year) 2022 federal sentencing.  The email I received from the USSC flagged these "FY22 Fast Facts":

The Sourcebook presents information on the 64,142 federal offenders sentenced in FY22 (October 1, 2021 through September 30, 2022) — a sentencing caseload that increased by 6,855 from the previous fiscal year.

• Drug trafficking, immigration, firearms, and fraud crimes together comprised 82% of the federal sentencing caseload in FY22.  

• Methamphetamine continued to be the most common drug type in the federal system (49% in FY22).

• The portion of drug cases involving fentanyl increased markedly over the last year, such that fentanyl cases were the third most common among all drug cases. 

• Methamphetamine trafficking continued to be the most severely punished federal drug crime (94 months, representing an increase of 4 months from the previous year).

• 65% of drug offenders were convicted of an offense carrying a mandatory minimum penalty, holding relatively steady from the previous year.

Spotlighting DOJ support for proposed guideline amendment suggesting downward departure for criminal history involving marijuana possession

The folks over at Marijuana Moment have this effective new piece, headlined "Justice Department Backs Proposed Marijuana Sentencing Guideline Reform To Treat Past Convictions More Leniently," that flags the support from DOJ for a not-insignificant small proposed amendment to the federal sentencing guidelines criminal history rules.  Here are excerpts (with links from the original):

The Justice Department is backing a proposal to update a federal commission’s sentencing guidelines suggesting that judges treat prior marijuana possession offenses more leniently, arguing that it aligns with the Biden administration’s “sentiment” toward cannabis policy.  Members of the federal U.S. Sentencing Commission (USSC) voted to propose the amendment in January. And at a public hearing on Wednesday, a federal prosecutor testified on behalf of DOJ in support of the cannabis item.

As it stands, federal judges are directed to take into account prior convictions, including state-level cannabis offenses, as aggravating factors when making sentencing decisions. But as more states have moved to legalize marijuana, advocates have pushed for updated guidelines to make it so a person’s marijuana record doesn’t add criminal history points that could lead to enhanced sentences in new cases.

USSC’s proposal doesn’t seek to remove marijuana convictions as a criminal history factor entirely, but it would revise commentary within the guidelines to “include sentences resulting from possession of marihuana offenses as an example of when a downward departure from the defendant’s criminal history may be warranted.”...

Jonathan Wroblewski, director of DOJ’s Office of Policy and Legislation, said in written testimony that the department “supports the proposed amendment” on revising the marijuana sentencing guidance....  Phillip Talbert, U.S. attorney for the Eastern District of California, reiterated that position in oral testimony before members of the commission during Wednesday’s public hearing.

“The department supports including convictions for the simple possession of marijuana, without an attempt to sell or distribute, as grounds for downward departure,” he said. “The commission’s proposal is consistent with the president’s views that no one should be in jail for the simple possession of marijuana and his pardon proclamation. It will also account for the many jurisdictions that have decriminalized personal use marijuana possession.”...

Not all witnesses at the commission’s Wednesday hearing supported the marijuana change, however.  The Probation Officers Advisory Group, which was established by the commission itself, said in written testimony that it “does not believe guidance is necessary for determining whether a downward departure is appropriate for defendants who receive criminal history points for simple marijuana possession offenses.”  The group pointed out that “the possession of marijuana has not been legalized federally and that state laws pertaining to marijuana vary greatly and are continually evolving, such that these measures may create greater sentencing disparities.”...

USSC separately released a report in January showing that hundreds of people received more serious federal prison sentences in the last fiscal year because of prior cannabis possession convictions in states that have since reformed their marijuana laws.  While federal marijuana possession cases have declined dramatically since 2014 as more state legalization laws have come online, the report highlighted the long-term consequences of cannabis convictions in terms of federal sentencing.

Some prior recent related posts:

• US Sentencing Commission publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"
• US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

DOJ testimony to Sentencing Commission on acquitted conduct sentencing generates notable responses

A few weeks ago, the Justice Department testified to the US Sentencing Commission that is was generally against efforts to amend the guidelines to significantly curtail the consideration of acquitted conduct at federal sentencing (hearing here, written testimony here).  This week, that testimony has generated some notable responses. 

Specifically, this new Reuters commentary by Hassan Kanu, headlined "U.S. Justice Dept takes a hard line on sentencing reform," laments that DOJ's position on this issue "does not square with agency leadership and President Joe Biden’s forceful commitments to addressing racism in the justice system and reducing mass incarceration."  And, perhaps even more notable, the lawyers representing Daytona McClinton in one of the acquitted conduct cases pending before SCOTUS filed this short new supplemental brief with the Court. (Regular readers know that last year I filed an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.)  Here are some snippets from the new supplemental brief:

In its brief in opposition, the government argued that “[t]his Court’s intervention” was not “necessary to address” the widespread problem of acquitted-conduct sentencing because “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15.  In January 2023, the Sentencing Commission introduced preliminary proposed amendments that would, if adopted, place modest limitations on federal courts’ consideration of acquitted conduct in sentencing....

In urging the Sentencing Commission to reject the proposed amendments, the government began its argument with a broad reading of United States v. Watts, 519 U.S. 148 (1997) (per curiam).  The government argued that the Commission’s proposal to “[c]urtail[] the consideration of acquitted conduct at sentencing would be a significant departure from long-standing sentencing practice” because this “Court has continued to affirm that there are no limitations on the information concerning a defendant’s background, character, and conduct that courts may consider in determining an appropriate sentence.” Gov’t Views at 12-13.

That expansive reading of Watts is deeply at odds with the far more limited understanding the government has presented to this Court....  The government also appears to have reversed its position on whether “the Sentencing Commission could promulgate guidelines to preclude such reliance.” Br. in Opp. 15. In oral testimony to the Commission in February, the government argued that “[t]he Commission’s proposal is unfortunately inconsistent with [18 U.S.C. § 3661],” a statute governing sentencing law....

Even as the government urges this Court that other mechanisms exist to address a controversial sentencing practice that a host of distinguished jurists have criticized, see Pet. 11-15; Br. of 17 Former Federal Judges as Amici Curiae 1, the government simultaneously invokes a disputed reading of the quarter-century-old per curiam opinion in Watts to defeat even the most modest efforts at reform.  And contrary to its assurances to this Court, it now contends that the Sentencing Commission lacks authority to promulgate amendments addressing the practice.

Absent further guidance from this Court, there is no reasonable prospect of ending acquitted-conduct sentencing, even at the federal level.  And absent this Court’s review, there is no prospect of the practice ending at the state level, which comprises “the vast majority of criminal cases in the U.S.”

"Recommended but Rarely Followed: Downward Departures of the Federal Sentencing Guidelines Among Child Pornography Offenders"

The title of this post is the title of this student comment authored by Madison Flores and recently posted to SSRN.  Here is its abstract:

In the last fifteen years, the online sexual exploitation and abuse of children has increased by 422% worldwide.  However, despite having a recommended federal sentencing guideline system, district judges routinely fail to impose sentences concerning child-pornography offenses within those guidelines, often believing they are too harsh.  In response to the growing epidemic of the lackluster application of the federal sentencing guidelines by judges, this Comment explores and analyzes the federal sentencing guidelines structure; examines the factors judges use when sentencing; reviews case studies from several circuits in the United States showcasing the egregious disparities; evaluates how pre-sentence reports affect guideline ranges; and analyzes sentencing trends across the federal circuits.

The current structure leads to sentencing disparities throughout the federal system for similarly situated defendants. Whether defendants will receive fifteen, ten, or five years rests solely on the moral standards of the judges they stand before.  This Comment strongly suggests that federal courts more closely follow the sentencing guidelines set forth by Congress to protect those most vulnerable: the children.

US Sentencing Commission soon to begin second set of public hearings on proposed guideline amendments

As first flagged in this post a couple of weeks ago, for sentencing fans looking for binge-worthy viewing and reading, the U.S. Sentencing Commission is still in the midst of its series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The first hearings, which took place on February 23 and 24, can still be watched in full via the now-achieved live-streamed recording at this link.  That link also has all the witness written testimony for a full 25 witnesses for the first two days of public hearings where "the Commission [received] testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

The second set of hearing as this week, taking place on  March 7 and 8, and the link here where folks can live-stream all the action explains that the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."  For these two days, it appears that there is again another 25 witnesses scheduled to testify on all these topics, and it appears that all their written testimony is already linked.   And again, the Commission will be engaging with a bunch of big policy questions along with lots and lots of (consequential) guideline technicalities. 

Among the many reasons the Commission has such a challenging job, on one issue they have to work with (or around) a recent Supreme Court cert grant.  As the Commission has rightly noted in proposed amendments, the FIRST STEP Act's new safety-valve provision for sentencing in drug cases ought to be incorporated into the the guidelines in some way.  But the circuit courts are deeply divided on the interpretation of that statutory provision, which produced, as noted here, the SCOTUS cert grant in was Pulsifer v. United States.  But that case will not be argued until this coming fall, and very likely will not result in a SCOTUS ruling until probably Spring 2024.  The Commission can amend the guideline before and/or after the SCOTUS ruling, but should it try to guess where SCOTUS will go or instead try to now develop a guideline that can function independent from the statutory debate.

A few recent related posts:

• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 
• US Sentencing Commission to begin series of public hearings on its proposed guideline amendments
• SCOTUS grants certiorari to review reach of FIRST STEP Act's expansion of statutory safety valve 

"To Hemp in a Hand-basket: The Meaning of 'Controlled Substance' Under the Career Offender Enhancement"

The title of this post is the title of this new paper authored by Jacob Friedman now available via SSRN.  Here is its abstract:

Sentencing enhancements can drastically impact prison sentences for people convicted of federal crimes.  The career offender enhancement is particularly harmful to a federal criminal defendant because it automatically raises their minimum offense level and criminal history score under the U.S. Sentencing Guidelines, which, although no longer mandatory, are almost always followed by judges in determining actual prison sentences.  Since 2016, the career offender enhancement has been applied to almost 8,000 criminal defendants who, at the time of their convictions, had accrued a total of two or more predicate felony convictions, for either a drug offense or a crime of violence enumerated in the Guidelines.

Yet an active circuit split over the definition of a “controlled substance” means that defendants with identical criminal histories could face drastically different guideline sentences.  Because the Supreme Court’s categorical approach in Taylor v. United States prohibits the use of “overbroad” predicate convictions for sentencing enhancement purposes, the definition of “controlled substance” is consequential -- a state statute criminalizing a broader set of conduct than applicable federal law cannot trigger the career offender enhancement.

Four circuits (the Fourth, Seventh, Eighth, and Tenth) have held that “controlled substances” are defined by applicable state law, sidestepping the categorical approach.  In those circuits, a prior conviction for marijuana that includes hemp -- now legal federally and in many states -- can serve as a predicate offense for the career offender enhancement. Four other circuits (the First, Second, Fifth, and Ninth) have held that “controlled substances” are defined by the Controlled Substances Act (CSA).  In these circuits, overbroad marijuana convictions cannot serve as predicate offenses under the categorical approach because the CSA currently legalizes hemp, while most state statutes before 2018 included hemp as a possible basis for conviction.  As a result, criminal defendants in these circuits are spared many years on their prison sentences by avoiding a career offender classification.

This Note argues that the Supreme Court should adopt the latter approach and hold that the CSA defines controlled substance offenses.  This recommendation is grounded in analysis of the career offender enhancement’s text, context, purpose, and history.

US Sentencing Commission to begin series of public hearings on its proposed guideline amendments

For sentencing fans looking for binge-worthy viewing and reading, the United States Sentencing Commission is on the verge of starting a series of public hearings concerning  its many proposed amendments to the US Sentencing Guidelines.  The hearing, which start Thursday morning at 9am EST, will be live-streamed at this link.  That link details that the hearing is scheduled to run all day on February 23 and for half the day on February 24 and during these two days "the Commission [will] receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sex Abuse of a Ward, and Acquitted Conduct."

I count a full 25 witnesses scheduled for Thursday's hearing which is just considering guideline amendment for compassionate release.  Nearly all the written testimony for these witnesses can be found linked within the USSC's hearing schedule.  I doubt I will get a chance to review more than a few of the statements, and I welcome readers helping to flag written testimony that seems particularly notable.  There are "only" 12 witnesses scheduled for Friday's hearing covering sex abuse of a ward, and acquitted conduct.  A quick review of the seven statements concerning acquitted conduct reveal a wide variety of opinions from a wide variety of witnesses.

And if that's not enough for sentencing fans, the Commission today also noticed here its plans for a second two-day public hearing on Tuesday, March 7 and Wednesday, March 8.  As the notice explains, the "purpose of the public hearing is for the Commission to receive testimony on proposed amendments related to Firearms, Fake Pills and the First Step Act-Drug Offenses, Circuit Conflicts, Career Offender, and Criminal History."

Latest issue of Federal Sentencing Reporter now available: "New U.S. Sentencing Commission Gets to Work"

As mentioned in this post a few months ago, the latest volume of the  Federal Sentencing Reporter  has a number of issues filled with a number of commentaries providing all sorts of advice for the new US Sentencing Commission.  The first of these FSR issues was titled "21st Century Advice to the New Commissioners" and can be found online here.  The follow-up FSR issue is titled "New U.S. Sentencing Commission Gets to Work," and it includes another set of original articles and related materials providing additional advice for the new USSC.   This new issue is available online here, and it begins with this introductory essay authored by me and Prof Steve Chanenson under the title "A Big Agenda and a Big Question for the New Sentencing Commission." Here is the abstract of this introductory essay:

Recent Senate confirmation of President Biden’s nominees to the U.S. Sentencing Commission transformed a long-hobbled agency into a refreshed expert body with a new opportunity to reexamine federal sentencing law and practice.  The new Commission has no shortage of large and small issues to tackle in the months and years ahead, and it faces not only a full and substantive agenda, but also a big operational question as it gets to work on its priorities.  The Commission has long stressed consensus in developing guideline amendments and related policy work.  But now with a full Commission of seven members when only four Commissioner votes are needed to advance guideline amendments and other formal policy decisions, it is possible that some Commissioners may not see a practical reason for the new Commission to always proceed by consensus and to advance only unanimously supported amendments.  A new Commission with a new willingness to move forward with amendments and policy initiatives, even in the absence of consensus, could prove to be a much bolder Commission.  But is bolder necessarily better, in terms of substantive work products and the ability to advance and implement proposed reforms?  Would a U.S. Sentencing Commission acting without consensus be more politically vulnerable in these divided and divisive times?

Prior related post:

• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

Federal judge gives cocaine trafficker time served ... and a requirement that she complete her JD program

Here is another notable sentencing story that might keep the comments buzzing  This one comes from the ABA Journal under the headline "Federal sentence includes law school, and attorneys wonder why."  Here are the basics (with links from the original):

Based on federal sentencing guidelines, people found guilty of trafficking large amounts of cocaine usually face lengthy sentences.  However, a Texas defendant received what many say is an unusual punishment: five days in prison with credit for time served and direction from the judge to complete her JD.

Chelsea Nichole Madill was accused of trafficking 28.5 kilos of cocaine in a 2018 criminal complaint.  She was charged in the U.S. District Court for the Southern District of Texas, and in 2019, Madill pleaded guilty to possession with intent to distribute a Schedule II drug.

Federal sentencing experts say the average penalty for that crime is around five years.  In addition to the law school piece and no prison time, Madill was sentenced to three years of supervised release.  The 2023 sentencing judgment was written by Southern District of Texas Chief Judge Randy Crane.

Much of the record is sealed, and whether Madill attended or completed law school is not disclosed. There is someone with that name listed as a 2L Florida A&M University College of Law student bar association board member.  A 2019 order authorized travel expenses for Madill, directing the U.S. marshal to obtain the cheapest means of noncustodial transportation possible between her Florida residence and the McAllen, Texas, courthouse....

Madill did not respond to an ABA Journal interview request sent through LinkedIn, and her phone number listed in court records was disconnected. FAMU Law also did not respond to ABA Journal interview requests....

Jesse Salazar, the assistant U.S. attorney assigned to the case, referred an ABA Journal interview request to a public affairs officer.  The PAO said the office did not object to the sentence. Richard Gould, a federal public defender, represented Madill.  A receptionist at the Southern District of Texas Federal Public Defender’s Office told the ABA Journal Gould does not speak to reporters....

The sentence is unique, says Michael Heiskell, a Texas attorney and president-elect of the National Association of Criminal Defense Lawyers. Indeed, being a law student could have resulted in a longer sentence if the court was persuaded a defendant’s legal education helped them commit the crime, he adds.

“Kudos to her and her counsel for being able to convince the court to do this. Hopefully, this gives her the motivation to complete her JD. Maybe her story resonated with the judge since he is obviously an attorney,” says Heiskell, a former state and federal prosecutor who does criminal defense work.

According to Heiskell, credit for time served is unusual in drug cases involving delivery, and the sentencing range for Madill’s conviction is between 87 and 108 months.  He adds that a purpose of the federal sentencing guidelines is to avoid disparities, so Madill’s sentence may be useful for defendants with cases similar to hers.  “You would want to make the argument of the courts being consistent in its sentencing for cases such as this. If I had a situation where my client was learning to be a plumber, electrician, etc., I would cite this case,” Heiskell says.

The ABA Journal reporter called me about this  case; I mentioned that, given that the plea was entered in 2019 and then the sentence was not imposed until 2023, it seems quite likely the defendant provided some cooperation in exchange for a reduced sentence. The article does not quote me on that point, but does highlight some of my other speculations for the very special law-school-completion condition of supervision.

For those so interested, here is the exact language in the sentencing entry from Chief Judge Crane: "You must continue to participate and complete an educational program designed to receive a Doctor of Jurisprudence degree." I joked to the ABA Journal reporter that, in some quarters, this condition might be viewed as "cruel and unusual punishment." That quote also did not make the article,  But now that the piece is published, I am eager to hear reactions to this very lawyerly federal sentence.

Only three weeks now to US Sentencing Commission's first public hearing on its proposed guideline amendments

My long-standard status as a sentencing nerd is surely be debate, but I can make the case again when I admit that I got more than a bit giddy upon seeing this official notice from the US Sentencing Commission announcing its "Public Hearing on Proposed Amendments to the Federal Sentencing Guidelines."  Here are the deets:

Pursuant to Rule 3.2 of the Rules of Practice and Procedure of the United States Sentencing Commission, a public hearing is scheduled for Thursday, February 23 and Friday, February 24, 2023 to commence at 9:00 a.m. (ET) on both days.

The public hearing will be held in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, NE, Washington, DC. The hearing will be streamed live below.

The purpose of the public hearing is for the Commission to receive testimony on proposed amendments to the federal sentencing guidelines related to Compassionate Release, Sexual Abuse of a Ward, and Acquitted Conduct.

Because there are many more issues covered in the USSC's proposed amendments, and because the comment period runs through mid-March, I suspect these scheduled two days of public hearings are just the first of what may be a series of hearings. How exciting.

A few of many prior recent related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission 
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"
• US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year 
• Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more) 
• Gearing up for a new federal sentencing year that might finally bring some new guideline amendments 
• Timely new CRS review of US Sentencing Commission's guideline amendment process and plans 
• US Sentencing Commissions publishes proposed guideline amendments and issues for comment 

If you never tire of acquitted conduct talk, here is a podcast episode for you

In this post from the summer, I highlighted the great new podcast created by Doug Passon, a defense attorney and documentary filmmaker, called "Set for Sentencing."  Doug continues to produce a lot of terrific content each week, all posted at this archive.  I am  putting another plug for his efforts because I had the honor of appearing in his the latest episode, "PRESUMED GUILTY: Using Acquitted, Dismissed, and Uncharged Conduct to Increase Sentences." 

Here is how Doug Passon sets up this nearly 90-minute podcast:

In a perfect world, the presumption of innocence is sacrosanct.  If you are found not guilty by a jury, common sense and the constitution dictate that acquitted conduct should not later be used to enhance your sentence on other charges.  But in federal court, it is not only possible, but commonplace to increase punishment based on acquitted, uncharged and dismissed conduct. The good news is, that might be changing soon.

Helping us get set for sentencing, Prof. Doug Berman and Mark Allenbaugh to talk about the proposed amendment to the United States Sentencing Guidelines on acquitted conduct. Prof. Berman is not only a federal sentencing expert, but wrote the Amicus brief for U.S. v. Daytona McClinton, an “acquitted conduct” case currently pending Cert. at the Supreme Court. Of course, we all know Mark Allenbaugh (www.sentencingstats.com) who completes what turns out to be an “all Allenbaugh January”.

Warning: this episode is not for the faint of heart. No, there’s no sex, drugs, or rock n’ roll. There are probably not even that many f-bombs dropped by Doug. It’s just a really, really, really deep dive into the inner machinations of our broken federal sentencing process. So strap in, and let’s get Set for Sentencing!

Prior related posts:

• New podcast for all sentencing fans (and especially defense attorneys)
• Another plug for a podcast for all sentencing fans (and especially defense attorneys) 

US Sentencing Commission provides "Public Data Briefing: Proposed 2023 Criminal History Amendment"

Among many notable and consequential proposed amendments to the federal sentencing guidelines, the US Sentencing Commission has noticed a number of proposals connected to criminal history issues.  And today the Commission posted here a "Public Data Presentation for Proposed Criminal History Amendment."  Here is how this release (which includes a video and associated slides) is described on the USSC website:

The Commission is seeking public comment on proposed amendments to the federal sentencing guidelines.  Commission staff prepared a data presentation to inform public comment on a proposed amendment related to criminal history and the Commission’s implementation of 28 U.S.C. § 994(j).  This briefing presents data on following aspects of criminal history to help inform public comment on the three-part proposed amendment:

• status points;
• offenders with zero criminal history points; and,
• simple possession of marijuana offenses.

En banc Eleventh Circuit limits reach of career offenders under USSG based on plain text of guideline for drug offenses

Last month, as noted in this post, the en banc Eleventh Circuit gave federal drug defendants a big sentencing win by giving a broad reading to the FIRST-STEP-amended mandatory-minimum safety valve provision.  A helpful reader alerted me to the fact that today the en banc Eleventh Circuit issued another ruling that helps some drug defendants at sentencing in US v. Dupree, No. 19-13776 (11th Cir. Jan.18, 2023) (available here).  This matter is another case with a Kisor role shifting guidleine interpretation (background here), and here is how the opinion of the Court begins:

This appeal requires us to consider whether an inchoate offense qualifies as a “controlled substance offense” for purposes of the career offender sentencing enhancement under the United States Sentencing Guidelines. U.S. Sent’g Guidelines Manual § 4B1.2(b) (U.S. Sent’g Comm’n 2018). In this case, the district court sentenced Brandon Dupree as a career offender based partly on his conviction for conspiring to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 846.  Dupree appealed his sentence, arguing that his § 846 conspiracy conviction could not serve as a predicate for his career offender enhancement because the Guidelines’ definition of “controlled substance offense” omitted conspiracy and other inchoate crimes.

A panel of this Court affirmed Dupree’s sentence, concluding that our decisions in United States v. Weir, 51 F.3d 1031 (11th Cir. 1995), and United States v. Smith, 54 F.3d 690 (11th Cir. 1995), foreclosed his argument.  United States v. Dupree, 849 F. App’x 911 (11th Cir. 2021) (unpublished), reh’g en banc granted, opinion vacated 25 F.4th 1341 (11th Cir. 2022). We granted Dupree’s petition to rehear the case en banc.  After careful consideration, and with the benefit of oral argument, we hold that the definition of “controlled substance offense” in § 4B1.2(b) does not include inchoate offenses.  We therefore vacate Dupree’s sentence and remand to the district court for resentencing.

Here is a choice paragraph from the start of the dissent by Judge Luck:

I respectfully dissent for two reasons.  First, despite what the majority opinion says it is doing, it is not really applying Kisor’s clarification to Stinson.  Under the majority opinion’s approach, the Kisor clarification applies to Stinson the same way a magnifying glass applies to an ant on a sunny day — total annihilation.  The majority opinion is actually applying Kisor to overrule Stinson.  But the Supreme Court didn’t overrule Stinson and we can’t overrule a Supreme Court opinion on our own.  Only the Supreme Court can do that.  Second, even if the majority opinion isn’t overruling Stinson, the Kisor clarification doesn’t apply to Stinson.

US Supreme Court relists latest cases seeking review of acquitted conduct sentencing

Regular readers surely recall some prior posts about the McClinton case before the US Supreme Court raising issues about the use of acquitted conduct at sentencing.  As detailed before (and linked below), I had the pleasure last year of working with great lawyers at Squire Patton Boggs to file an amicus brief on the acquitted conduct issue in support of petitioner Dayonta McClinton.  (I blogged here about McClinton's case after the Seventh Circuit affirmed his 19-year sentence that was based heavily on the judge's determination that McClinton was to be held responsible for a murder even after a jury had acquitted him of that killing.  As detailed in this SCOTUS docket sheet, a number of notable interest groups have also filed amicus briefs in support of cert in this case.)

After various delays and more delays, the McClinton case (as well as a number of others raising acquitted conduct issues) was finally considered at last Friday's SCOTUS conference.  I was a bit worried when last week's SCOTUS cert grant list did not include the case, but I was hopeful that we would learn today that the McClinton case was relisted and the docket sheet now reflects that reality.  I am pretty sure that all the other acquitted conduct cases considered in the last SCOTUS conference were also relisted.

More often than not, relisting is a precursor to a later denial of cert, perhaps with a dissent or separate statement being authored by one or more Justices giving their take on the Court's decision not to grant review.  But relisting is also sometimes a precursor to a later granting of cert.  So, as I have said before, I am hopeful, thought still more than a bit pessimistic, about the possibility of 2023 being the year for SCOTUS to take up acquitted conduct sentencing. 

A few recent of many, many prior related posts:

• "Acquitted Conduct Should Not Be Considered At Sentencing"
• A reminder of why "acquitted conduct" sentencing enhancements should be seen as a constitutional abomination 
• Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."
• Split Michigan Supreme Court finds due process precludes use of acquitted conduct at sentencing 
• "Acquitted. Then Sentenced."
• NJ Supreme Court holds, as a matter of state constitutional law, that "fundamental fairness" precludes sentence enhancement based on acquitted conduct 
• Can anyone estimate how many (thousands of) federal prison years have been based on acquitted conduct sentencing? 
• Might SCOTUS finally be ready to take up acquitted conduct sentencing enhancements?
• Hoping and pushing for SCOTUS finally taking up acquitted conduct sentencing enhancements 

UPDATE:  John Elwood at SCOTUSblog has this new post noting the acquitted conduct relists, "Acquitted-conduct sentencing and 'offended observer' standing."

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.

US Sentencing Commission releases "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System"

This morning, the US Sentencing Commission has released this interesting new report titled "Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System."  This USSC webpage provides this summary and key findings:

The report entitled Weighing the Impact of Simple Possession of Marijuana: Trends and Sentencing in the Federal System updates a 2016 Commission study and examines sentences for simple possession of marijuana offenses in two respects.  Part One of the report assesses trends in federal sentencings for simple possession of marijuana since fiscal year 2014.  The report then describes the demographic characteristics, criminal history, and sentencing outcomes of federal offenders sentenced for marijuana possession in the last five fiscal years and compares them to federal offenders sentenced for possession of other drug types.

Part Two of the report examines how prior sentences for simple possession of marijuana (under both federal and state law) affect criminal history calculations under the federal sentencing guidelines for new federal offenses.  The report identifies how many federal offenders sentenced in fiscal year 2021 — for any crime type — received criminal history points under Chapter Four of the Guidelines Manual for prior marijuana possession sentences.  The report then assesses the impact of such points on those offenders’ criminal history category, one of the two components used to establish the sentencing guideline range.

Key Findings

Federal Sentencings for Simple Possession of Marijuana

• The number of federal offenders sentenced for simple possession of marijuana is relatively small and has been declining steadily from 2,172 in fiscal year 2014 to only 145 in fiscal year 2021.
• The overall trends were largely driven by one district, the District of Arizona, which accounted for nearly 80 percent (78.9%) of all federal marijuana possession sentencings since 2014.  As the number of such cases in the District of Arizona declined from a peak of 1,916 in 2014 to just two in fiscal year 2021, the overall federal caseload followed a similar pattern.
• Federal offenders sentenced for marijuana possession in the last five fiscal years tended to be male (85.5%), Hispanic (70.8%), and non-U.S. citizens (59.8%).  A little over two-thirds (70.1%) were sentenced to prison; the average prison sentence imposed was five months.
• As of January 2022, no offenders sentenced solely for simple possession of marijuana remained in the custody of the Federal Bureau of Prisons.

Impact of Prior Sentences for Simple Possession of Marijuana

• In fiscal year 2021, 4,405 federal offenders (8.0%) received criminal history points under the federal sentencing guidelines for prior marijuana possession sentences.  Most of the prior sentences (79.3%) were for less than 60 days in prison, including non-custodial sentences.  Furthermore, ten percent (10.2%) of these 4,405 offenders had no other criminal history points.
• The criminal history points assigned under the federal sentencing guidelines for prior marijuana possession sentences resulted in a higher criminal history category for 1,765 of the 4,405 offenders (40.1%).
• Of the 1,765 offenders whose criminal history category was impacted by a prior marijuana possession sentence, most were male (94.2%), U.S. citizens (80.0%), and either Black (41.7%) or Hispanic (40.1%).
• Nearly all (97.0%) of the prior marijuana possession sentences were for state convictions, some of which were from states that have changed their laws to decriminalize (22.2%) or legalize (18.2%) marijuana possession, states that allow for expungement or sealing of marijuana possession records (19.7%), or some combination thereof.  Prior sentences for marijuana possession from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.

Wondering about the impact of AG Garland's new charging and sentencing memos

Remarkably, it has already been almost a month since Attorney General Merrick Garland issued new charging and sentencing policy guidance for Justice Department prosecutors through two memoranda (basics here).  These memos received some press attention (and some blog commentary) when first issued in mid December.  But, somewhat surprisingly, I have not since seen all that much continued commentary or further echoes concerning AG Garland's instructions to federal prosecutors to "promote the equivalent treatment of crack and powder cocaine offenses" and other notable aspects of these notable memos. 

Of course, with the holidays and all, it is surely too early to be expecting to see the full impact or fall out from these DOJ memos.  Still, given that the instructions in these memos impact every federal criminal case in some way, I am continuing to expect these memos to generate notable cases and controversies before too long.  And, while waiting, I have now had the honor and pleasure of working with former ENDY US Attorney Alan Vinegrad to write up a short overview of the memos for coming publication in the February 2023 issue of the Federal Sentencing Reporter.  The draft of that overview is available for download below, and it starts this way:

On December 16, 2022, United States Attorney General Merrick Garland issued long-awaited guidance setting forth the Department of Justice's latest charging, plea and sentencing policies. He did so in the form of two memos: one providing general policies for all criminal cases (the "General Memo"), and a second providing additional policies for drug cases (the "Drug Memo").

These latest DOJ policies are generally consistent in many respects with past policies issued by Attorney General Garland's predecessors, but they break new ground (or revive previously-rescinded policies) in several areas: mandatory minimum statutes, statutory sentencing enhancements, the crack/cocaine sentencing disparity, and pre-trial diversion.  All of these new policies tack in the same direction: ameliorating the harshness of the modern-era federal sentencing regime.

Download Vinegrad and Berman for FSR on new DOJ policies

Reviewing prosecutions and sentencings two years after January 6 Capitol riots

A number of major papers today provide some major reviews of the prosecution and sentencing of January 6 rioters on the two-year anniversary of the storming of the Capitol.  Here are headlines and links, as well as an except from the story most focused on sentencing outcomes:

From the New York Times, "Two Years Later, Prosecutions of Jan. 6 Rioters Continue to Grow: The Justice Department’s investigation of the Capitol attack, already the largest it has ever conducted, has resulted in 900 arrests, with the potential for scores or hundreds more to come."

From USA Today, "More than 950 people have been charged in Jan. 6 Capitol riot, but investigation 'far from over'"

From the Washington Post, "Review of Jan. 6 cases finds judges give harsh lectures, lighter sentences: Judges have gone below prosecutors’ recommendations three-quarters of time, and below federal sentencing guidelines a little less than 40 percent":

Of more than 460 people charged with felonies, only 69 have been convicted and sentenced so far, mostly for assaulting police or obstructing Congress; all but four have received jail or prison time. The average prison sentence for a felony conviction so far is 33 months, according to a Washington Post database....

About half of the arrests so far have been for misdemeanors, and for those given actual jail time, the average sentence has been 48 days. But most of the misdemeanants have not received any jail time: most have received probation, home detention or halfway house time, or a fine. These defendants are typically rioters who entered the Capitol and didn’t engage with the police, but left a trail of social media posts and photos before, during and after Jan. 6.

If we include those who didn’t receive jail time among the misdemeanor sentences, the average jail time drops to 22 days. The number of defendants being held in jail before trial, or awaiting sentencing, is about 50, according to a list provided by the Justice Department....

For the 25 defendants sentenced so far for assaulting law enforcement, the average sentence has been more than 48 months — in line with the nationwide average for that offense in recent years, according to data from the U.S. Sentencing Commission. Former New York City police officer Thomas Webster received a 10-year term for fighting with an officer and helping breach the outer perimeter. There are still nearly 180 defendants whose assault cases are pending.

The most serious charge for those not accused of assaulting the police has been obstruction of an official proceeding. Only 28 people have been sentenced for obstruction or conspiracy to obstruct the certification of the electoral vote, receiving an average sentence of about 42 months....

The judges appointed by Democratic presidents have imposed jail or prison sentences in 61 percent of their cases, and probation in 18 percent of the cases, while judges appointed by Republican presidents have given jail or prison sentences in 48 percent of their cases, and probation in 34 percent of cases. In the remaining cases, judges have sentenced defendants to home detention or a halfway house, or imposed a fine. Judge Tanya Chutkan, an Obama appointee, has handled 22 sentencings and imposed incarceration in every one, but another Obama appointee, Judge Rudolph Contreras, has handled 16 sentencings and jailed only one defendant.

Judges Dabney Friedrich and Trevor N. McFadden, both Trump appointees, have given probation sentences to about half of their Jan. 6 defendants. McFadden is also the only judge to have acquitted a defendant at trial and the only judge to have imposed only a fine on a defendant.

Timely new CRS review of US Sentencing Commission's guideline amendment process and plans

A helpful colleague alerted me to a new Congressional Research Service “Legal Sidebar” which efficiently covers the US Sentencing Commission's history, its amendments process, and some of its stated priorities for 2022-23 guideline amendments.  This five-page report is titled "Back in Action, the U.S. Sentencing Commission to Resolve Circuit Splits on Controlled Substances and Sentencing Reductions," and it starts this way:

In 1984, Congress revolutionized federal sentencing.  That year, Congress established the U.S. Sentencing Commission (the Commission) as an independent agency within the judicial branch and directed it to promulgate the first-ever federal sentencing guidelines.  In 1987, the Commission published the inaugural U.S. Sentencing Guidelines manual (the Guidelines), which serves as the starting point and anchor for every federal sentence imposed across the country. Over 1.9 million defendants have been sentenced under the Guidelines since their inception.

Congress also required the Commission to “review and revise” the Guidelines, which it has done periodically.  Between 2019 and July 2022, however, the Commission lacked a quorum and therefore the ability to propose amendments to the Guidelines. In August 2022, the Senate confirmed a full slate of seven new commissioners, restoring the Commission’s quorum and thus enabling the Commission to initiate its amendments process.  As a part of that process, in November 2022, the Commission published a list of final priorities for analysis and possible action.  According to a timetable fixed in statute, should the Commission study a priority and approve prospective changes to the Guidelines, the Commission will submit the proposed amendments to Congress by May 1, 2023.  Congress then has until November 1, 2023, to affirmatively reject any such amendments, or the amendments will take effect.

This Sidebar addresses one of the Commission’s listed priorities: the resolution of two conflicts among the federal appeals courts involving the Guidelines.  The first conflict relates to whether, for a “controlled substance offense” to trigger the Guidelines’ “career offender” recidivist enhancement, the underlying controlled substance must be prohibited by the federal Controlled Substances Act (CSA) or whether a controlled substance prohibited only under state law can also lead to the career offender enhancement.  The second conflict pertains to whether federal prosecutors may withhold a sentencing reduction from a federal defendant because the defendant raised a pre-trial Fourth Amendment challenge to the government’s evidence.

Notable ruling on meth sentencing guidelines by a notable federal sentencing judge

A helpful colleague made sure I did not miss a notable little new ruling from federal judge in Mississippi in US v. Robinson, No. 3:21-CR-14-CWR-FKB-2 (S.D. Miss. Dec. 23, 2022) (available here).  The ruling addresses the calculation of the federal sentencing guideline range in meth cases, and here are some excerpts (with lots of cites omitted):

The issue is fairly straightforward. The U.S. Sentencing Guidelines use drug purity as a proxy for a defendant’s culpability....  As a result, the Guidelines make a distinction between “methamphetamine” and “actual methamphetamine.”   All else equal, defendants caught with actual methamphetamine get longer sentences than defendants caught with methamphetamine mixture....

The distinction is significant to Mr. Robinson.  Because he possessed 214.4 grams of especially pure methamphetamine, the Guidelines indicate that he should have a “base offense level” of 32.  In contrast, if Mr. Robinson was deemed to have possessed 214.4 grams of methamphetamine mixture, the Guidelines indicate that his base offense level would be 26....

At the outset, the Court appreciates the parties for pointing to Judge Bennett’s decision in United States v. Nawanna, 321 F. Supp. 3d 943 (N.D. Iowa 2018).  In that case, the United States conceded that there is no empirical basis for the Sentencing Commission’s 10-to-1 weight disparity between actual methamphetamine and methamphetamine mixture. Other courts have found the same....

On review, the undersigned agrees with these colleagues.  The Guidelines use drug purity as a proxy for culpability.  But national experience suggests that is no longer true for methamphetamine.  The DEA data show that most methamphetamine confiscated today is “pure” regardless of whether the defendant is a kingpin or a low-level addict....

Given the on-the-ground reality in methamphetamine cases, the better way to determine culpability is to examine all of the circumstances of the defendant’s case and life -- seeing the defendant as a “whole person,” as the Supreme Court just instructed in Concepcion. 142 S. Ct. at 2395.  There are sentencing enhancements available for leaders, organizers, or managers of criminal enterprises.  If the defendant’s case warrants, those enhancements should be applied.  In the context of methamphetamine, though, purity is no longer probative of the defendant’s culpability.

This ruling is notable on its own terms, but it seemed especially blogworthy because of the opinion's author: US District Judge Carlton W. Reeves. Judge Reeves, as some readers likely know, is the new Chair of the US Sentencing Commission.

Federal judge sentences Michigan man who plotted to kidnap Gov to 16 years despite feds seeking LWOP ... and thereafter give other leader 235 months

As reported in this NBC News piece, headlined "Man sentenced to 16 years for plotting to kidnap Michigan Gov. Gretchen Whitmer," a high-profile case reached a sentencing outcome this morning in Michigan federal court. Here are some of the notable details:

A federal judge on Tuesday sentenced a man to 16 years in prison for his role in a plot to kidnap Michigan Gov. Gretchen Whitmer — opting against the prosecution's bid for life behind bars.

Adam Fox, 39, was convicted in August of conspiracy to commit kidnapping and to use a weapon of mass destruction to attack Whitmer, who had drawn the ire of far-right groups for her efforts to curb the spread of Covid-19 in 2020. Jurors in April failed to come to verdicts against Fox and co-defendant Barry Croft, forcing a judge to declare a mistrial before a second trial proved decisive.

U.S. District Judge Robert Jonker questioned whether Fox was a true "natural leader" of the plot, worthy of a life sentence.  "I don't think life is needed to achieve the important public deterrent factors," Jonker said in Grand Rapids, explaining the 192-month sentence.

While a terrorism enhancement set up Fox for a possible life term, Jonker said that harshest sentence isn’t automatic and that he had to carefully consider other factors.  Jonker said he leaned heavily on a 2018-19 Northern California case where U.S. District Judge Charles Breyer, brother of retired U.S. Supreme Court Justice Stephen Breyer, sentenced ISIS sympathizer Amer Alhaggagi to 188 months in prison, more than 15 years short of the 33 years sought by prosecutors.

“You have to calibrate, as judges, the overall seriousness of wrongdoing and the overall seriousness of the defendant’s history," Jonker said. “I see nothing in the record ... nothing that makes me think he’s (Fox) a natural leader and nothing that makes me think he’s the kind of person that anybody involved in this group was naturally going to follow.”

Assistant U.S. Attorney Nils Kessler had said Fox was out to spark an all-out war and needed to be put away for life. “They wanted a second Civil War or a revolution,” Kessler told the court on Tuesday.  "They wanted to ruin everything for everybody."  Kessler warned that Fox will still be a dangerous man when he someday walks free. “The problem is this defendant, he’s going to go into jail and probably emerge more radicalized than when he went in and will remain a danger to the public, your honor," the prosecutor said.

The plot was hatched in response to Whitmer's actions during the start of the pandemic in 2020 when she ordered various lockdowns aimed at curbing the spread of Covid. Far-right groups blasted Whitmer, and then-President Donald Trump appeared to back that opposition in an all-caps tweet.

Defense attorney Christopher Gibbons argued on Tuesday that a life sentence would have been too much.  "That overstates the reality of the conduct that has been alleged and that was actually accomplished by Adam Fox in summer of 2020," Gibbons said.

Based on various press reports, I surmise a terrorism enhancement under the federal sentencing guidelines led to a guildeine-recommended sentencing of life, which is turn served as a key basis for federal prosecutors to advocate for an LWOP term. But it seems Judge Jonker concluded that a 16-year prison term would be "sufficient but not greater than necessary" to serve the purposes set forth by Congress in 18 USC 3553(a)(2).

UPDATE:  On Wednesday (Dec. 28), another kidnapping plot leader was sentenced by the same judge as detailed in this Fox News account:

The other co-leader convicted of conspiracy charges in the foiled plot to kidnap Michigan Gov. Gretchen Whitmer in 2020 was sentenced Wednesday to nearly 20 years in prison.

Barry Croft Jr., who prosecutors recommended a life sentence, learned of his punishment a day after key ally Adam Fox was sentenced to 16 years. Croft was sentenced to 19 years and seven months.

Fox, 39, and Croft, 47, were convicted on two counts of conspiracy at a trial in August. Croft also was found guilty of possessing an unregistered explosive.  The conspirators were furious over tough COVID-19 restrictions that Whitmer and officials in other states had put in place during the early months of the pandemic, as well as perceived threats to gun ownership.

Croft, a Delaware trucker, regularly wore a tri-cornered hat common during the American Revolution and had tattoos on his arms symbolizing resistance -- "Expect Us" -- as he traveled to Ohio, Wisconsin and Michigan to meet with like-minded extremists, according to the Associated Press. "Although he may not have had hierarchical control over all the other participants, he coordinated and pushed the implementation of the conspiracy from its inception to its final stages," Assistant U.S. Attorney Nils Kessler said in a court filing....

"The abduction of the governor was only meant to be the beginning of Croft’s reign of terror," Kessler said. "He called for riots, ‘torching’ government officials in their sleep and setting off a ‘domino’ effect of violence across the country."

A key piece of evidence showed Croft, Fox and others traveled to see Whitmer's vacation home in northern Michigan, with undercover agents and informants inside the cabal. At one point, Croft told allies, "I don’t like seeing anybody get killed either. But you don’t make an omelet without breaking a few eggs, you know what I mean?"

Croft's attorney tried to soften his client's role. In a court filing, Joshua Blanchard said the Bear, Delaware, man did not actually have authority over others and often frustrated them because he "just kept talking." Croft was smoking 2 ounces of marijuana per week, Blanchard said. "Simply put, to the extent that the jury determined he was a participant, as they necessarily did, he was a participant to a lesser degree than others," Blanchard insisted.

Two men who pleaded guilty and testified against Fox and Croft received substantial breaks; Ty Garbin is already free after a 2 1/2-year prison term, while Kaleb Franks was given a four-year sentence.

In state court, three men recently were given lengthy sentences for assisting Fox earlier in the summer of 2020. Five more are awaiting trial in Antrim County, where Whitmer’s vacation home is located.

Some early commentary on notable end-of-year federal criminal justice reform developments

I hope and expect that the new charging and sentencing memos issued by AG Garland (basics here), as well as the failure of the out-going Congress to pass any significant criminal justice reforms, will garner extended attention and analysis in the weeks and months ahead.  Usefully, I have already seen some first-cut accountings from a variety of sources:

From Filter, "The Limits of AG’s Guidelines Against Crack-Powder Sentencing Disparity"

From LISA-Legalinfo, "Blue Christmas for Criminal Justice Reforms"

From MSNBC, "Racist war on drugs is the real winner of Congress’s massive spending bill"

From Reason, "The Failure To Enact Marijuana Banking and Crack Sentencing Reforms Is a Window on Congressional Dysfunction"

From San Diego Union-Tribune, "Creating different punishments for crack and powder cocaine never made sense, unscientific"

Looking forward, the practical impact of AG Garland's charging and sentencing memos, the continued implementation of the FIRST STEP Act, and especially the coming work of the newly, fully-staffed U.S. Sentencing Commission will be topics to watch closely in the weeks and months ahead.  So, I am tentatively hopeful that the lack of much lasting federal criminal justice reform in 2022 is just a precursor to a big 2023 ahead.

Lots of new data and a notable date from the US Sentencing Commission

The US Sentencing Commission yesterday published two new data reports: (1) this updated compassionate release data report and (2) this FY 2022 fourth quarter sentencing data.  There are lots of stories within all these data, though I still see the top stories to be those discussed here before: there are dramatic district variations in compassionate release grant rates and there are still relatively few "within guideline" sentences" being imposed by judges.

Specifically, on compassionate release, the three districts of Georgia show one notable example of variation: the Southern District of Georgia has granted only 8 out of 296 sentence reduction motions for a 2.7% grant rate; the Middle District of Georgia has granted only 4 out of 265 sentence reduction motions for a 1.5% grant rate; but the Northern District of Georgia has granted 80 out of 174 sentence reduction motions for a 46% grant rate.  On original sentencing more generally, this most recent USSC data show that, for all of FY 22, only 42% of all federal sentences have been imposed "Within Guideline Range" (and the number is under 28% for "Drug Trafficking" cases).

For various reasons and in various ways, all these data in some sense reflect the consequences of the US Sentencing Commission having to function without a quorum and being unable to amend any guidelines for nearly five years.  But, of course, we now have a fully loaded Commission, and the Commissions are clearly hard at work on guidelines reforms.  We know that because the Commission has now officially announced that it will have a public meeting on January 12, 2023, and that announcement notes the meeting agenda is to include "Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment."

Latest issues of FSR providing new advice to a new US Sentencing Commission (and lots more)

I have had the great pleasure this Fall to be working on two issues of the Federal Sentencing Reporter with all sorts of commentaries providing all sorts of advice for the all the new members of the US Sentencing Commission.  The first of these issues, titled "21st Century Advice to the New Commissioners," is now available online here.  This issue includes more than a half-dozen original articles authored by judges, federal prosecutors and defenders, and policy advocates.  Prof Steve Chanenson and I authored this introductory essay, titled "Another (Not Quite) Fresh Start," which has this abstract:

As the famed legal scholar Yogi Berra once observed, “It’s like deja vu all over again.”  Those wise words can describe the U.S. Sentencing Commission.  Once again, we find ourselves with a fresh, full-strength Commission brimming with all the promise and excitement that comes with a new opportunity to reexamine federal sentencing law and practice. That is the good news.  What brought us to this moment, however, is the not-so-good news, which merits a brief trip down an unpleasant memory lane.  This is not the first time that the Commission has lacked a quorum.  This latest and longest episode of Commission paralysis strikes us as particularly disturbing because it may reflect a widespread lack of faith in — or at least a notable dearth of enthusiasm for — the work of the Commission and the guidelines enterprise more generally. Like baseball fans on opening day, we remain hopeful about the future.  The new Commissioners are well-regarded professionals who come to their common task in good faith — bringing their own, varied views.  They face a mix of urgent new challenges and important enduring ones.  We add our voices to those over the decades who hope that the Commissioners will think broadly (including by reexamining long-established assumptions) and act boldly.

This October 2022 issue of FSR also includes a series of materials and articles providing "Perspectives on Recidivism and Long Sentences." And, as suggested above, the December 2022 issue of FSR will have additional commentaries providing additional advice for the new USSC.

Third Circuit panel rules federal fraud guideline enhancements for "loss" do not properly include "intended loss"

I am grateful to a whole bunch of folks who made sure I did not miss the notable ruling by a Third Circuit panel today in US v. Banks, No. 21-5762 (3d Cir. Nov. 30, 2022) (available here).  Banks is yet another case involving another circuit finding notable guideline commentary problematic and inapplicable in the wake of recent Supreme Court administrative law rulings.  Here is how the Banks opinion starts and some key passages within (footnotes omitted):

A jury convicted Frederick Banks of wire fraud, and the District Court sentenced him to 104 months’ imprisonment and three years’ supervised release. On appeal, Banks argues that the District Court erred in three ways, by (1) denying his constitutionally protected right to self-representation, (2) applying the loss enhancement to the fraud guideline in the United States Sentencing Guidelines because there was no “actual loss,” and (3) imposing certain special conditions of supervised release.  We conclude that the loss enhancement in the Guideline’s application notes impermissibly expands the word “loss” to include both intended loss and actual loss. Thus, the District Court erred when it applied the loss enhancement because Banks’s crimes caused no actual loss. We will, therefore, affirm the judgment of the District Court except on the issue of loss enhancement; we will remand this case to the District Court for it to determine loss and to resentence Banks....

Next, we turn to Banks’s argument that the District Court erroneously applied the intended-loss enhancement to his sentence when the victim suffered $0 in actual losses. The application of the intended-loss enhancement hinges on the meaning of the term “loss” as used in Guideline § 2B1.1. Because the United States Sentencing Commission has interpreted “loss” in its commentary, the weight afforded to that commentary may affect the meaning of “loss.”...

Our review of common dictionary definitions of “loss” point to an ordinary meaning of “actual loss.” None of these definitions suggest an ordinary understanding that “loss” means “intended loss.”  To be sure, in context, “loss” could mean pecuniary or non-pecuniary loss and could mean actual or intended loss.55 We need not decide, however, whether one clear meaning of the word “loss” emerges broadly, covering every application of the word.  Rather, we must decide whether, in the context of a sentence enhancement for basic economic offenses, the ordinary meaning of the word “loss” is the loss the victim actually suffered.  We conclude it is.

Because the commentary expands the definition of “loss” by explaining that generally “loss is the greater of actual loss or intended loss,” we accord the commentary no weight. Banks is thus entitled to be resentenced without the 12-point intended-loss enhancement in § 2B1.1. 

Sixth Circuit panel debates agency deference for guideline commentary defining images for child porn sentencing

How Appealing and Jonathan Adler at The Volohk Conspirary both posted about a notable new Sixth Circut panel opinion in US v. Phillips, No. 21-5762 (6th Cir. Nov. 28, 2022) (available here).  Here is how the majority opinion, which runs 17 pages, gets started:

When it passed the PROTECT Act in 2003, Congress required the United States Sentencing Commission to vary penalties for child-pornography offenses depending on the number of images involved.  The Commission accordingly implemented that method of calculating penalties in the Sentencing Guidelines.  Addressing what it perceived to be an ambiguity in Congress’s command, the Commission added an application note in the Guidelines commentary instructing courts to equate one video to seventy-five images when calculating the applicable Guidelines sentencing range.

For almost twenty years, courts have relied on this “75:1 Rule” when sentencing defendants convicted of possessing videos containing child pornography.  Recent Supreme Court precedent, however, has clarified when courts can defer to an agency’s interpretation of its regulations (by applying so-called Auer deference).  Defendant-Appellant Trinity Phillips argues that this recent clarification means that a sentencing court can no longer rely on the 75:1 Rule, and that the court erred in relying on it when imposing his sentence.  We disagree and affirm that sentence as imposed by the district court.

Concurring in the judgment only, Judge Larsen authors an 18-page opinion that starts this way:

How is a court to respond when the question before it involves the interpretation of an agency rule?  Over decades, we lower courts developed a habit of deferring reflexively to the agency’s interpretation under Seminole Rock and Auer, rather than first tackling the interpretative question ourselves, to see whether the rule was “genuinely ambiguous.” Kisor v. Wilkie, 139 S. Ct. 2400, 2414 (2019).  Three years ago, the Supreme Court told us to stop.  The Court did not mince words: “[T]he possibility of deference can arise only if a regulation is genuinely ambiguous.  And when we use that term, we mean it — genuinely ambiguous, even after a court has resorted to all the standard tools of interpretation.” Id.  In United States v. Riccardi, this court confirmed that Kisor’s admonition applied to the Sentencing Guidelines too. 989 F.3d 476, 486 (6th Cir. 2021).  These were important decisions.  They reminded us that judges have a duty to interpret the law, even when administrative agencies are involved.  But old habits are hard to break.  Today’s decision is proof.  No fair reading of Kisor and Riccardi would permit us to defer to the Sentencing Commission’s conclusion that the word “image” means 1/75th of every video.  Nevertheless, the majority opinion rolls right through Kisor’s stop sign, reflexively deferring to an agency’s noninterpretation of an unambiguous Sentencing Guideline.  So I concur in the judgment only.

Has anyone tracked how often district judges recuse from resentencing?

The question in the title of this post in prompted by this interesting recusal order brought to my attention by Howard Bashman (and blogged here at How Appealing).  In the 24-page order, U.S. District Judge Larry Alan Burns explains why he has decided to recuse from two resentencings after Ninth Circuit opinions ruled that two drug offenders had to be given "minor role" reductions under the federal sentencing guidelines.  Here is part of the opinion's concluding section (with a few cites removed):

Where the question embodies the kind of discretion traditionally exercised by a sentencing court — i.e., making findings concerning a defendant’s role in an offense and level of culpability — the judgment is entitled to substantial deference.  Substantial deference is especially appropriate when factual nuances may closely guide the legal decision to be made, or where the legal result depends heavily on an understanding of the significance of case-specific details that have been gained through experience with trials and sentencings.  Buford, 532 U.S. at 64–65.  This is precisely the kind of determination that must be made in resentencing Sandra and Jesus Rodriguez.

The Mandates arrived at the judgment that two practiced drug traffickers, who consciously and intentionally joined plans to import bulk quantities of methamphetamine and heroin into the United States, and who were promised thousands of dollars in payment for their participation, qualify as “minor participants” in the offense of simple drug importation.  My twenty-five years of grounded, trial-level experience handling border drug smuggling cases opposes the logic and impact of that conclusion....

In this Order, I have attempted to explain why I continue to believe and would find that the Rodriguez defendants are “average” border drug smugglers — no better, no worse. But my explanation and probable findings — even if not expressly precluded by the law of the case and the rule of mandate — are most certainly inconsistent with the expansive “spirit” of the Mandates, which unsubtly bespeaks the desired conclusion of the court of appeals.  The Ninth Circuit has said that in situations like this, where the original sentencing judge on remand would “have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous,” the judge should recuse.  United States v. Arnett, 628 F.2d 1162,1165 (9th Cir. 1979).  Because I find myself unable to brush aside my insights, experience, and long-held conclusions about what “average” border drug smugglers know and how they operate, I respectfully recuse from further involvement in these cases.

Howard Bashman says he "suspect that this sort of recusal happens quite rarely," and I suspect he is right.  But the real rarity here is likely the lengthy explanation of the reasoning behind the recusal, and I wonder if somewhat lower-key resentencing recusals might be a bit more common.

Federal judge imposes (within guideline) sentence of 135 months on Theranos founder Elizabeth Holmes

After a lengthy sentencing hearing (and a favorable guideline calculation), Theranos founder Elizabeth Holmes heard US District Judge Edward Davila sentence her to 135 months in federal prison this afternoon.  (That's 11 years and three months for those not accustomed to math in base 12.) 

Why such a quirky number?  Apparently Judge Davila concluded the total loss in share value properly attributed to Holmes's fraud was $121 million, which was an integral finding to support his calculation that her guidelines range was 135-168 months. (The feds, some may recall, calculated her guideline range to be life.)

Here is the lede of the Wall Street Journal's coverage of the sentence: "Elizabeth Holmes, the founder of Theranos Inc. convicted of fraud, was sentenced to 135 months, or 11.25 years, in prison, capping the extraordinary downfall of a one-time Silicon Valley wunderkind."

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 
• Any final thoughts on today's federal sentencing of Elizabeth Holmes?

Any final thoughts on today's federal sentencing of Elizabeth Holmes?

As I write this post, the federal sentencing of the Theranos founder Elizabeth Holmes is scheduled to begin after she was found guilty of four of 11 charges of fraud at a jury trial this past January. I have to go teach my 1L Crim law class in a few minutes, so I might be slow to report the outcome if the sentencing is quick.  But I can here seek any pre- (or post-)sentencing final thoughts, aided by this New York Times lengthy preview piece (which, as I note below, has some technical errors).  Here are excerpts:

Senator Cory Booker, Democrat of New Jersey, recently praised Elizabeth Holmes’s thoughtful focus and “determination to make a difference.”  The actress Ricki Noel Lander said Ms. Holmes was “a trustworthy friend and a genuinely lovely person.”  And Channing Robertson, who was a professor of chemical engineering at Stanford University, commended Ms. Holmes for her “compassion for others.”

Their comments were part of a cache of more than 100 letters that were filed over the last week to a federal judge in San Jose, Calif., in an effort to reduce the punishment for Ms. Holmes, the founder of the failed blood testing start-up Theranos. In January, she was convicted of four counts of defrauding investors about Theranos’s technology and business dealings. She is scheduled to be sentenced for those crimes on Friday.

Ms. Holmes, 38, faces a maximum of 20 years in prison, according to federal sentencing guidelines for wire fraud. Her lawyers have requested 18 months of house arrest, while prosecutors have asked for 15 years of imprisonment.  The probation officer in Ms. Holmes’s case has recommended a sentence of nine years.

The decision lies with Judge Edward J. Davila of U.S. District Court for the Northern District of California, who oversaw Ms. Holmes’s trial last year. In addition to the letters from her supporters asking for leniency, he is set to take into account lengthy memos filed by her lawyers and prosecutors, and will consider whether Ms. Holmes has accepted responsibility for her actions.

Most notably, Judge Davila must weigh the message that Ms. Holmes’s sentence sends to the world. Her high-profile case came to symbolize the excesses and hubris of Silicon Valley companies that often play fast and loose with the law. Theranos raised $945 million from investors, valuing the company at $9 billion, on the claim that its technology could accurately run many tests on a single drop of blood. But the technology never worked as promised.

Few tech executives are ever found guilty of fraud. So a lighter sentence for Ms. Holmes could send the wrong signal to the industry, legal experts said. “This is a case with more deterrence potential than most,” said Andrew George, a white-collar defense lawyer at Baker Botts. “Judge Davila will be sensitive to any impression that this person of privilege got a slap on the wrist.”...

Since Ms. Holmes was convicted, other high profile start-up founders have also come under scrutiny, prompting further debates over start-up ethics. Trevor Milton, the founder of the electric vehicle start-up Nikola, was convicted last month on charges of lying about his company’s technology. Sam Bankman-Fried, the founder of the cryptocurrency exchange FTX, is under numerous investigations after his company suddenly collapsed into bankruptcy last week....

Prosecutors said in court filings that significant prison time for her would send a message to other entrepreneurs who stretched the truth. A long sentence would not only “deter future start-up fraud schemes” but also “rebuild the trust investors must have when funding innovators,” they wrote.

I am pretty sure that each of Holmes' four fraud convictions carry a 20-year maximum sentence, so technically she faces a maximum of 80 years in prison.  In addition, I believe "according to federal sentencing guidelines" calculations put forward by the prosecution, the guidelines actually call for a life sentence (which is not formally possible, though the 80-year max would be essentially a functional life sentence).  That all said, I am sticking to my 10-year sentence as the betting line over/under, though I am thinking I might be inclined to take the over.

Prior related posts:

• Elizabeth Holmes convicted on 4 of 11 fraud charges ... but now can be sentenced on all and more 
• Making the case, because "upper-class offenders ... might be even more reprehensible," for a severe sentence for Elizabeth Holmes 
• Might any victims of Theranos fraud urge leniency at sentencing for Elizabeth Holmes?
• Elizabeth Holmes' federal sentencing ready to go forward after her new trial motion is denied 
• Sentencing memos paint very different pictures of Elizabeth Holmes 

US Sentencing Commission finalizes its policy priorities for for the 2022-2023 amendment year

This morning brought the first public US Sentencing Commission hearing in nearly four years, which was convened to finalize the USSC's priorities for the coming amendment year.   This new USSC news release describes all the details with links to key documents:

The United States Sentencing Commission today unanimously approved its policy priorities for the 2022-2023 amendment year ending May 1, 2023. Among its top priorities is implementation of two significant changes made by the First Step Act of 2018.

The First Step Act amended the statute providing for compassionate release to allow defendants for the first time to file for compassionate release, without having the Director of the Bureau of Prisons make a motion. This procedural option is not yet accounted for in the guidelines, leading most appellate courts to hold that the Commission’s policy statement governing compassionate release does not apply to motions filed by defendants. At the same time, in the wake of the COVID-19 pandemic, the debate about what constitutes “extraordinary and compelling reasons” for compassionate release took center stage across the nation with differing results.

“The conflicting holdings and varying results across circuits and districts suggest that the courts could benefit from updated guidance from the Commission, which is why we have set this as an important part of our agenda this year,” said Judge Carlton W. Reeves, chair of the Commission. 

In addition, the First Step Act made changes to the “safety valve,” which relieves certain drug trafficking offenders from statutory mandatory minimum penalties. The Act expanded eligibility to certain offenders with more than one criminal history point. The Commission intends to issue amendments to section 5C1.2 to recognize the revised statutory criteria and consider changes to the 2-level reduction in the drug trafficking guideline currently tied to the statutory safety valve.

The Commission also set out its intent to implement criminal provisions contained in the Bipartisan Safer Communities Act, which includes increased penalties for certain firearms offenses, and other legislative enactments that require Commission action.

The Commission published tentative priorities and invited public comment in September, receiving more than 8,000 letters of public comment in response. “The Commission is appreciative of the feedback it has received from all corners of the federal sentencing community,” stated Reeves. “As we now pivot to work on the final priorities set forth today, we look forward to a careful and detailed examination of these issues and our continued interaction with the public to ensure the federal sentencing guidelines properly reflect current law and promote uniformity in sentencing.”

The Commission will also address circuit conflicts, examine other key components of the guidelines relating to criminal history, and begin several multi-year projects, including an examination of diversion and alternatives-to-incarceration programs. “A number of judges and others within the court family expressed strong support for the programs within their own district,” Reeves said. “The Commission looks forward to hearing more from experts and researching more fully the benefits of these programs.”

The Commission will also study case law relating to guidelines commentary and continue its examination of the overall structure of the advisory guideline system post-U.S. v. Booker.

A complete list of final priorities may be found here and in an upcoming edition of the Federal Register.

From a quick review, the biggest change in the finalized priorities from the proposed priorities seems to be the addition of this new item: "(10) Consideration of possible amendments to the Guidelines Manual to address sexual abuse or contact offenses against a victim in the custody, care, or supervision of, and committed by law enforcement or correctional personnel."

As I mentioned after the release of the proposed USSC priorities, there are lots and lots of "hot topics" covered in many of the topics now to be tackled by the Commission in this list of now finalized priorities. I am extremely excited to see what the new Commission has planned for these topics.

A few prior related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission
• New US Sentencing Commission releases its first set of tentative policy priorities 
• Get ready: new US Sentencing Commission soon to finalize new policy priorities
• US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

UPDATE:  The folks at Marijuana Moment have spotlighted via this report, headlined "Federal Commission Considers Changes To How Past Marijuana Convictions Can Affect Sentencing For New Crimes," that the USSC's finalized priorities included a notable addition with regard to low-level marijuana offenses and criminal history.  Here are the details:

The federal U.S. Sentencing Commission (USSC) says it is considering possible amendments to guidelines on whether, and to what extent, people’s criminal history for marijuana possession can be used against them in sentencing decisions for new convictions.

On Friday, the independent branch of the federal judiciary unanimously approved 14 policy priorities for an amendment cycle ending in May 2023. The cannabis item wasn’t included in an earlier version of the priority proposal list circulated for public feedback earlier this month, but it was added and adopted after President Joe Biden issued a mass marijuana pardon proclamation....

Now, USSC is calling it a priority to look into amending the guidelines for defendants’ criminal history reviews when it comes to “the impact of simple possession of marihuana offenses.”...

While the commission must still develop and pass any potential amendments to its guidelines, it is possible that it could soon be the case that prior simple cannabis possession offenses would be a non-issue from a sentencing perspective for new defendants. It is also potentially the case that a new sentencing policy for cannabis criminal histories could be retroactively applied.

US Sentencing Commission reports receiving "more than 8,000 public comment submissions pertaining to proposed priorities"

This past Friday, the US Sentencing Commission reported on the public comments it received in response to the USSC's tentative policy priorities for the 2022-2023 guideline amendment year (which were announced late last month).  Here is how the USSC describes on its website homepage what was set its way: "The Commission received more than 8,000 public comment submissions pertaining to proposed priorities for the 2022-2023 amendment year."

I would guess that eight thousand(!) comments amounts to some kind of record for the USSC.  This large number of comments surely reflects a kind of "pent up demand" given the need for guideline reforms to fully implement the First Step Act and other issues that have festered over the last four years while the Commission has lacked a quorum.  But I also suspect it reflects that many advocates may realize, circa Fall 2022, that the new USSC may be more willing and more able to advance certain federal criminal justice reforms than any other federal actors right now.

The USSC has provided a "sample of these letters" reflecting public comment at this link.  It is notable and interesting to see comments there from a Senator, from multiple federal judges, from prosecutors and defense attorneys, from probation officers, and from all sorts of interest groups and interested individuals.  Kudos to everyone involved in sharing a wide array of views to help the USSC's with its important work.  And, this Friday brings the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

A few prior related posts:

• At long last, we have a fully loaded USSC: Senate confirms all seven of Prez Biden's nominees to Sentencing Commission
• New US Sentencing Commission releases its first set of tentative policy priorities 
• Get ready: new US Sentencing Commission soon to finalize new policy priorities

Get ready: new US Sentencing Commission soon to finalize new policy priorities

Though MLB playoffs and NCAA and NFL action are what usually get me going this time of year, in 2022 my inner federal sentencing nerd has as much to look forward to as my inner sports fan.  Specifically, after receiving a few weeks ago the US Sentencing Commission's new tentative policy priorities for the 2022-2023 amendment year, next week brings the excitement of the first public US Sentencing Commission hearing in nearly four years, on October 28, to finalize the USSC's priorities for the coming amendment year.

For those eager to pre-game all the USSC action, the Commission has now released here a "very special episode" of its official podcast, Commission Chats.  This is "Episode 9: Meet Our New Chair!" and it gets previewed this way:

In this very special episode, newly appointed Commission Chair Carlton W. Reeves discusses highlights of his career as a lawyer and judge, including the moment he learned he was not only nominated as a member but also Chair of the Commission.  Judge Reeves also shares his goals for the Commission this amendment year and hopes for this season's Jackson State Tigers. (Published October 17, 2022)

And, for even more intense pre-game action, the folks at FAMM have put together this great panel discussion for Monday October 24 titled "Guess Who's Back: The Sentencing Commission's Return & the 2022-2023 Amendment Cycle."  Here is a preview of the FAMM overview:

After over 3 years without a Sentencing Commission, the Commission is now back in action.  What does this mean for criminal justice reform?  Join FAMM and our special guests as we provide an overview of the Commission's role in criminal justice reform, what we know the Commission will prioritize this guideline amendment cycle, the legal landscape that has developed in the absence of a Commission, and the impact of all this on real people.

So get ready, get ready, because here they come!