United States Sentencing Commission Presents Amendments: Compassionate Release, Zero Point Offenders and Status Points
The United States Sentencing Commission has recently issued new sentencing commission guidelines and amendments, set to take effect from November 1, 2023 unless congress intervenes. This significant development aims to enhance the overall quality and effectiveness of the sentencing process.
What is the United States Sentencing Commission?
We have covered the Sentencing Commission many times here. Of particular note, its 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.
United States Sentencing Commission Rules of Practice and Procedure
For more info on the Sentencing Commission and their goals please go here.
Timeline of the United States Sentencing Commission
The Sentencing Commission's timeline is predictable and is the same each year whenever they have a quorum:
September 2022: The commission put out their initial list of priorities for issues that they were going to address in the cycle. This was followed by a public comment period.
October 2022: The Commission Put forth their list of Final Priorities.
January 2023: The Commission Presented their Slate of Amendments for the 2023 Term.
February 2023: The Commission put forth their proposed guidelines for 2023.
April 2023: The Commission voted on the proposed Amendments. The amendments were approved unanimously except for the compassionate release policy statement, which was approved 4-3.
July 2023: The commission held a public hearing on the retroactive application of the zero-points and status points amendments (see below for explanation)
August 2023: The commission held a vote on the retroactive application of the zero-points and status points amendments. A motion to approve the retroactive application of the amendments was granted 4-3 with a special instruction that no court can grant a motion to reduce a sentence or release a person until February 1, 2024.
Amendment 821 of the Federal Sentencing Guidelines
Each set of amendments to the Federal Sentencing Guidelines is Numbered. These are the 821st amendment to the Guidelines so they are considered to be Amendment 821. There are several changes to the guidelines, we will cover them below.
Part A: Status Points
What is it: Part A of the Criminal History Amendment changes what is called the “status points” for an offense committed while “under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” U.S.S.G. 4A1.1(e). Prior to the amendment, those who committed an offense while under parole, probation, etc. received a two-point increase to their criminal history category. This amendment reduces the increase to one point and only applies if the defendant receives 7 or more points for prior convictions.
Eligibility: Anyone who received an extra two-points under the former 4A1.1(d) for committing the instant offense while under any sentence, probation, parole, supervised release, etc. If you have 7 points or more in addition to those 2, you would receive a 1-point reduction. If you have less than 7 points, then there would be no added points.
Next, taking away those 1-2 points must lower your criminal history category. Remember that a CHC I is 0-1 point; II is 2-3 points; III is 4-6 points; IV is 7-9 points; V is 10-12; and VI is 13 or more.
If reducing the criminal history points reduces your criminal history category, then the next question is whether it reduces your Guidelines range. In most cases it will. But there is a possibility it might not for the higher end sentences. (Example: Offense Level 38, CHC VI and Offense Level 38 CHC V both produce a Guideline range of 360 to life)
Part B: Zero Point Offenders
What is it: The second part of the Criminal History Amendment creates a whole new criminal history category - 0. Currently, the categories are classified I-VI. This amendment would provide for a two-level reduction to the offense level for individuals with zero criminal history points.
Who is Eligible: To be eligible for the zero-point offender amendment, you need to meet the 10 criteria listed in the new U.S.S.G. 4C1.1:
- No criminal history points
- No adjustment under 3A1.4 (terrorism)
- No use or credible threats of violence in connection with the offense
- The offense did not result in death or serious bodily injury
- The offense is not a sex offense
- The defendant did not personally cause substantial financial hardship
- The defendant did not possess, receive, purchase, transport, transfer, sell, or dispense of a firearm or other dangerous weapon in connection with the offense.
- The instant offense is not covered under 2H1.1 (Offenses Involving Individual Rights)
- The defendant did not receive an adjustment under 3A1.1 (Hate Crime Motivation or Vulnerable Victim) or 3A1.5 (Serious Human Rights Offense); and
- The defendant did not receive an adjustment for aggravating role (3B1.1) and was not engaged in a continuing criminal enterprise under 21 U.S.C. 484.
Special Notes:
"Sex Offense:" Sex offense is defined as:
(A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a record keeping offense; (iii) chapter 117 of title 18, not including transmitting information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (iv) of this definition.
Most CP Cases fit under this, meaning that they are not eligible.
Firearms Cases: Criteria 7 indicates that
The defendant did not possess, receive, purchase, transport, transfer, sell, or dispense of a firearm or other dangerous weapon in connection with the offense.
Several people have indicated that while they did receive a +2 in their sentencing guidelines for a firearm or a 924(c), they did not really possess a firearm (examples would be that maybe they had a picture of a firearm on their phone or a picture of them holding a gun on social media). In these cases it will more than likely be decided on a case-by-case basis.
Criteria 10: Criteria 10 states that
The defendant did not receive an adjustment for aggravating role (3B1.1) and was not engaged in a continuing criminal enterprise under 21 U.S.C. 484.
This is more than likely to be determined on a case by case basis. You may want to consider waiting to file in your circuit to see how the case law will shake out.
Changes to Compassionate Release including Policy Statements
The commission also made changes to the compassionate release guidelines. These will be covered soon over on our page about compassionate release.
How to Seek Relief on the 821 Amendment
Whether you are eligible for Part A or Part B of the Criminal History Amendment, the process for seeking the relief is the same - a motion for reduction of sentence under 18 U.S.C. 3582(c)(2).
Section 3582(c)(2) states:
in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with the applicable policy statements issued by the Sentencing Commission.
So what does that mean? There are three key points:
First, you have to be eligible for a reduction, meaning application of the amendment has the effect of lowering your Guidelines. If you were sentenced to the mandatory minimum (unless you received a 5K1.1 or Rule 35(b) reduction) then you likely are not eligible. If you were a career offender, then you are likely not able to seek relief.
Second, relief is discretionary. Even if the you are eligible, the court can deny a reduction if it finds one unwarranted. The same applied when Amendment 782 came out in 2014, and with compassionate release motions. These are highly discretionary and it is why I always advise having a licensed attorney assist you if possible.
Third, the district court’s discretion is going to be based primarily off the sentencing factors under 18 U.S.C. 3553(a). These are the same factors the court considered at the original sentencing hearing. However, the key here is the Supreme Court’s decision in Pepper which held that post-sentencing rehabilitation efforts can have a major impact on the 3553(a) factors. So you are going to want to present the court with evidence of this-your programming, certificates, letters of support, etc., to show how you have worked on your rehabilitation while being incarcerated.
When Can I File?
Claimants can file on November 1. Do not file early.
When Can the Court Rule?
I watched the meeting by the Sentencing Commission. The Commission indicated that the effective date was 11/1/2023 for the amendments but that no court could enter an order reducing the sentence of a person until February 1, 2023.
An email I got shortly after from the Sentencing Commission’s listserv said the following:
“Judge Reeves added, evidence-based policy determinations that apply with equal force to previously sentenced individuals. Applying these changes retroactively will increase fairness in sentencing. At the same time, the 3-month delay will help ensure that individuals released based on our decision today receive the benefit of reentry programs and transitional services essential to support their successful reentry to society, which at the same time promotes public safety.’”
Based on the language of the amendment and the special instruction I believe that previously incarcerated persons can file their motions on November 1, 2023. The court cannot rule on these motions until February 1, 2023, but you will want to be first in line when the courts are able to rule.
To me, this is similar to the COVID compassionate release motions that were granted by the court but given effective dates of 14 days from the signing of the order to allow the incarcerated person to be released.
Again, based on what I heard, claimants can file on November 1, 2023. The court can rule only after 2/1/2024.
Will the Government Oppose My Motion?
As I’ve stated on the phone to many loved ones, it is very likely that the government will oppose the vast majority of these motions. This comes from my experience with these motions and statements that the government has made regarding these amendments and their retroactive application. The government will have your presentence investigation report, any disciplinary records that you have, and anything else that they can use to make a 3553(a) case against your reduction. This is what the government did on compassionate release cases, on our First Step Act Section 404 Crack motions and our Two-Level Reduction motions in the past. The best way to have success is to have an attorney representing you that has your PSR right there to bring up the things that are valuable to mention as well as preempt or reply to the government’s response.
United States Sentencing Commission Q&A on the new Amendments
Since the Guidelines are set to take effect on November 1st, I wanted to share with you “Questions and Answers” provided by the United States Sentencing Commission. This information can be found online here. We will cover the questions and answers that not been covered elsewhere here.
What does it mean to make an amendment retroactive?
When the Commission amends the sentencing guidelines in a way that reduces sentencing ranges, the Commission must consider whether to make that change applicable to people who have already been sentenced and are currently imprisoned.
In the instance of [the Zero-Point Offenders and Status Points Reductions] of the 2023 Criminal History Amendment, the Commission has determined that some people who have already been sentenced – and are currently serving prison sentences – are eligible to apply for retroactive application of the new guideline range.
If an incarcerated person is eligible, a district judge will review the case to decide whether to reduce their sentence.
How many individuals are eligible for the reduction?
The Commission estimates that approximately 11,500 are eligible to seek a reduction in their current sentence pursuant to retroactivity of Part A of the 2023 Criminal History Amendment.
The Commission estimates that approximately 7,300 are eligible to seek a reduction in their current sentence pursuant to retroactivity of Subpart 1 of Part B of the 2023 Criminal History Amendment.
Will all eligible individuals automatically receive a reduction?
No one will automatically receive a sentence reduction.
In order to be eligible for a sentence reduction, an individual must be serving a term of imprisonment, the guideline range applicable to the individual must have been lowered as a result of Parts A or B of the 2023 Criminal History Amendment, and the individual must not already be scheduled to be released prior to February 1, 2024.
If an individual’s original sentence was below the new, reduced guideline, they likely will not be entitled to a further reduction unless the original sentence was based on substantial assistance to the government.
If an individual is eligible for a reduction, a district court judge will review the case and decide whether a sentence reduction is appropriate.
What does the judge consider when deciding to grant a reduction?
The judge will consider all of the factors that a judge considers at an initial sentencing in determining whether a reduction in the defendant's term of imprisonment is warranted and the extent of any reduction. This means factors like the nature and circumstances of the offense, the characteristics of the individual, public safety, deterrence, and the sentencing guidelines will all be considered. In a judge’s review of a motion for a reduction, there will likely be explicit attention to public safety, and this analysis will likely also include review of the individual’s record while in prison.
How do I make a motion for reduction in sentence?
Pursuant to 18 U.S.C. 3582(c), upon motion of the defendant or the Director of the Bureau of Prisons, or upon the court’s own motion, the court may reduce the term of imprisonment of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o). The court may grant such a motion, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
If the 2023 Criminal History Amendment and its retroactive application go into effect, judges may consider these motions beginning November 1, 2023. The Commission does not comment on individual cases nor can it provide legal advice. For legal advice on how to file a motion for a sentence reduction, you may wish to contact an attorney.
Those who request a sentencing reduction do not have a right to a hearing. Many requests will be resolved based on the written materials that are filed.
Is public safety a consideration in the court's review of these cases?
Yes. The sentencing guidelines require the court to consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in an individual’s term of imprisonment. Courts can consider an individual’s prison record.
What is the projected average sentence reduction for eligible individuals?
The Commission projects judges would be able to reduce sentences for eligible individuals under Part A by an average of 11.7%. The average sentence for eligible individuals could drop from 120 months to 106 months (average reduction of 14 months).
The Commission projects judges would be able to reduce sentences for eligible individuals under Subpart 1 of Part B by an average of 17.6%. The average sentence for eligible individuals could drop from 85 months to 70 months (average reduction of 15 months).
Are there any limitations on the extent of a reduction the court can grant?
Yes. The court is not permitted to reduce the individual’s term of imprisonment to a term that is less than the bottom of the guideline range that would have applied if the 2023 Criminal History Amendment were in effect when the individual was sentenced.
The only exception is if the individual received a downward departure pursuant to a government motion based on substantial assistance provided to the government. Courts are not otherwise entitled to sentence below the reduced guideline range.
What happens to the people who could be released between November 1, 2023 and February 1, 2024?
The Commission has determined that no one will be released based on retroactive application of the 2023 Criminal History Amendment prior to February 1, 2024. They made this decision in order to allow for careful consideration by courts, transitional services for all released individuals including transition through a halfway house or home confinement where appropriate, and preparation by probation officers to effectively supervise released individuals – all of which will promote public safety and successful reentry. This means that some individuals who would otherwise be eligible but who are already scheduled to be released before February 1, 2024, will not be able to seek a reduction and will instead be released after serving their full sentences.
Are retroactive motions the same as compassionate release?
No. Retroactivity and Compassionate Release are governed by separate statutes and guidelines that carry different procedural requirements. See 18 U.S.C. 3582(c)(2) and USSG 1B1.10 for more information on retroactive sentence reductions. See 18 U.S.C. 3582(c)(1)(A) and USSG 1B1.13 for more information on compassionate release.
Update 11/1: Amendments Become Official, New Guidelines Manual Released
On November 1, the Sentencing Commission released their new Digital Guidelines Manual. The Guidelines Manual reflects the changes brought forth in Amendment 821 including the new 4C1.1 for persons with zero criminal history points, the changes in criminal history for those with status points and the new policy statement for "compassionate release" cases.
Also released were several "Amendments in Brief," which are "short summaries, usually one to two pages, of the Commission’s actions in a certain area of sentencing policy and the issue that prompted the amendment to the federal sentencing guidelines."
Further notable is the 2023 sentencing guidelines chart which was amended pursuant to the changes in § 4C1.1 regarding Zero-Point Offenders.
Questions and Answers Regarding Amendment 821, The Zero Point Amendment and the Status Points Amendments
Zero Point Amendment Q and A
Q: I was placed on probation in the past and as such I got one criminal history point for my criminal history category. That is the only thing that is on my PSR for my criminal history. Can I file for amendment 821/4C1.1 (the zero points offender)
A: This claim would not be successful. Recall that that 4c1.1, the zero-points offender guideline states the following: (1) the defendant did not receive any criminal history points from Chapter Four, Part A; Because a probation leads to 1 point, this person would not be eligible.
Q: I have state convictions in the past but no federal convictions. The state convictions do in fact lead to criminal history points being added to my PSR. Because they are not federal convictions, can I use the zero points offender/821 amendment?
A: This claim would not be successful. When looking at 4c1.1 the question is do they have any points at all. State convictions can serve as points under 4A1.1.
Questions about Filing the 821 Motion and Appealing the 821 Motion
Q: I filed my 821 motion and the court already denied me. Can I claim that the court denied my rights by denying me BEFORE February 1, 2024?
A: I don’t believe this claim would be successful. Although the sentencing commission made a special instruction that courts could not grant any motions before February 1, 2024, there is no rule about when they can be denied. This means that the court could very well deny these motions before February 1, 2024.
Q: If I lose my 821 motion can I appeal the decision?
A: Yes, however the standard of review (meaning how the court decides this decision) is going to make it difficult for incarcerated persons. The best way to go is to retain our office at the outset by emailing us at info@gordondefense.com.
Q: If I retain your office to represent me will you mail the documents to me to file or will you do it?
A: We are an office of lawyers that engage in full-service representation. If we are retained to represent you we will file the motion on your behalf. We will also send you a copy of the government’s response and in appropriate motions, write a reply to the government’s response. For more information or to talk to us about filing a 2255 motion for ineffective assistance of counsel, a 3582 motion for the sentencing guidelines or a compassionate release motion, please email us at info@gordondefense.com
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