United States Sentencing Commission Issues 2024 Amendments: Acquitted Conduct, Youthful Offenders

United States Sentencing Commission Promulgates Amendments for 2023-2024 Term

The United States Sentencing Commission has recently issued new sentencing commission guidelines and amendments, set to take effect from November 1, 2024 unless congress intervenes. This significant development aims to enhance the overall quality and effectiveness of the sentencing process.  In this article we’ll discuss the amendments that have been brought forth and what they mean to people both charged with crimes and previously convicted of crimes looking to reduce their sentences. 

What is the United States Sentencing Commission?

Of particular note, the commission’s stated purposes are:

(1) to establish sentencing policies and practices for the federal courts, including guidelines to be consulted regarding the appropriate form and severity of punishment for offenders convicted of federal crimes;

(2) to advise and assist Congress and the executive branch in the development of effective and efficient crime policy; and

(3) to collect, analyze, research, and distribute a broad array of information on federal crime and sentencing issues, serving as an information resource for Congress, the executive branch, the courts, criminal justice practitioners, the academic community, and the public.

The sentencing commission publishes studies that I sometimes publish. They also put forth the federal sentencing guidelines, the basis of sentencing for all cases in the federal courts. 

The Amended Guidelines

Changes to the economic loss guidelines

The commission indicated that “the proposed amendment would create Notes to the loss table in 2B1.1(b)(1) and move the general rule establishing loss as the greater of actual loss or intended loss from the commentary to the guideline itself as part of the Notes. The proposed amendment would also move the rule providing for the use of gain as an alternative measure of loss, as well as the definitions of ‘actual loss,’ ‘intended loss,’ ‘pecuniary harm,’ and ‘reasonably foreseeable pecuniary harm’ from the commentary to the Notes.”

By amending the guidelines to move those definitions to the guidelines instead of the notes, this means that loss can be the greater of actual loss or intended loss, thereby overruling The Banks case from the Third Circuit and unfortunately prohibit further proliferation of the idea that the guidelines should only consider actual loss and not intended loss. 

Changes regarding Youthful Individuals  

The guidelines also were amended regarding youthful individuals. The sentencing commission indicated that downward departures may be warranted due to an offender’s youthfulness at the time of the offense OR DURING PRIOR OFFENSES:

“A downward departure also may be warranted due to the defendant’s youthfulness at the time of the offense or prior offenses. Certain risk factors may affect a youthful individual’s development into the mid-20’s and contribute to involvement in criminal justice systems, including environment, adverse childhood experiences, substance use, lack of educational opportunities, and familial relationships. In addition, youthful individuals generally are more impulsive, risk-seeking, and susceptible to outside influence as their brains continue to develop into young adulthood. Youthful individuals also are more amenable to rehabilitation. 

The age-crime curve, one of the most consistent findings in criminology, demonstrates that criminal behavior tends to decrease with age. Age-appropriate interventions and other protective factors may promote desistance from crime. Accordingly, in an appropriate case, the court may consider whether a form of punishment other than imprisonment might be sufficient to meet the purposes of sentencing.”

The Sentencing Commission noted that “[r]esearch has shown that brain development continues until the mid-20s on average, potentially contributing to impulsive actions and reward-seeking behavior, although a more precise age would have to be determined on an individualized basis.”  Further, the commission noted that “[r]esearch also has shown a correlation between age and rearrest rates, with younger individuals being rearrested at higher rates, and sooner after release, than older individuals.”

Changes Regarding Acquitted Conduct

The Sentencing Commission had much to decide about Acquitted Conduct, indicating that it was not to be considered as part of relevant conduct, adding the following as part of USSG 1B1.3(c):

(c) ACQUITTED CONDUCT.—Relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.

The sentencing commission went on to define “Acquitted Conduct” as

Acquitted Conduct.—Subsection (c) provides that relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct establishes, in whole or in part, the instant offense of conviction. There may be cases in which certain conduct underlies both an acquitted charge and the instant offense of conviction. In those cases, the court is in the best position to determine whether such overlapping conduct establishes, in whole or in part, the instant offense of conviction and therefore qualifies as relevant conduct.  

Here, acquitted conduct is not going to apply to cases where there was a plea. It will only apply to cases where there was a trial. The sentencing commission noted that very few people will be impacted by this guideline amendment:

“In fiscal year 2022, nearly all sentenced individuals (62,529; 97.5%) were convicted through a guilty plea. The remaining 1,613 sentenced individuals (2.5% of all sentenced individuals) were convicted and sentenced after a trial, and 286 of those sentenced individuals (0.4% of all sentenced individuals) were acquitted of at least one offense or found guilty of only a lesser included offense.” 

Circuit Conflicts and Miscellaneous as well as 4c1.1

There are a handful of amendments that handle circuit conflicts. There are also amendments that relate to amendment 4C1.1, the Zero-point offender guideline. Unfortunately, none of them seem to work in favor of inmates. 

The guidelines were amended to expand the definition of “sex offense” at 4C1.2(b)(2) to cover all offenses described in the provision instead of only to offenses perpetrated against minors. Further, Guideline 4C1.1(a)(10) was split into two so now it reads 

(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role); and 

(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. 848; 

In the past these were in the same guideline, causing confusion about whether a person could get the reduction if they only had one of the two. Now it is clear that an inmate must not have either an aggravating role or being engaged in a criminal enterprise. 

United States Sentencing Guidelines Puts Forth Amendments For Retroactivity

This year the commission are considering four parts of the guidelines for retroactivity:

The Acquitted Conduct Guidelines, the Guidelines Around enhanced penalties for drug offenders, the 2K2.1(b)(4)(B) Enhancement regarding to scratched off serial numbers of firearms, and the amendment relating to the interaction between 2K2.4 and 3D1.2(c).

Notably, there is nothing in the bulletin about the retroactivity of the Youthful offenders Amendment, which many of you have asked about. That was not included. For right now I am still thinking about how incarcerated persons would be able to use that amendment for their betterment.  Give me some time to think about that and I will get back to you.

What happens next to these proposed retroactive amendments?

The amendments are in a public comment period that will last until June 21, 2024.  There will also be a reply period, which may only respond to issues raised during the original comment period, which will go until July 22, 2024. From there, the commission will set a time to vote and vote.  I will let you know here what they decide.