Sentencing Commission News: New proposed guidelines amendments

The Sentencing Commission met on Friday, December 9, in its last meeting of the year. You can see a video of the entire meeting right here. You can read Chair Patti Saris’s statement here.

The Commission published a set of proposed amendments to the federal sentencing guidelines. You can read all of them here. The public may comment on the amendments and those written comments must be received by February 20, 2017 to be considered by the Commission.

Some things to remember:

· These amendments are not going into effect right now. If the Commission adopts any or all of them, they will do so after the public comment period closes and by no later than May 1, 2017.

· Then, the proposed amendments are sent to Congress, which has six months to disapprove them by a majority vote in both houses.

· If Congress does not reject any or all the amendments, they will go into effect automatically on November 1, 2017.

· These amendments would not affect mandatory minimum sentences. They would only affect guideline sentences.

Also, there is a real possibility that the Commission will not have enough members in early 2017 to vote on the proposed amendments. Congress did not approve any of President Obama’s pending nominees to serve on the Commission and three commissioners’ terms expire this year. That leaves only two commissioners, Professor Rachel Barkow and Judge Bill Pryor starting in 2017. The Commission must have at least four members to vote on anything. We do not know if President Trump will nominate new commissioners and Congress vote on them in time to get these amendments voted on. We will keep you posted.

This is simply a summary of some of the proposed amendments. It does not contain all the proposed amendments or all the terms of the proposals. If you are interested in commenting on the proposed amendments, be sure to obtain a copy of them.

First Offenders/Alternatives to Incarceration.

Defendants with no or very limited criminal history are classified in Criminal History Category I. Criminal History Category I does not distinguish between defendants with zero criminal history points and those with 1 criminal history point. This means that Criminal History Category I treats the following defendants identically:

· First time offenders with no prior convictions

· Defendants with prior convictions that are too old to be counted anymore

· Defendants with prior convictions that are not counted for other reasons (such as minor misdemeanors or convictions from tribal or foreign courts) and

· Defendants with a prior conviction that resulted in one criminal history point.

1. The Commission proposal would lower the guideline range by one (Option 1) or up to two levels (Option 2) for true first offenders. Defendants who were subject to a mandatory minimum sentence but receive the Safety Valve would not be able to secure a guideline range below 17.

2. It would also provide more access to alternatives to incarceration for such true first offenders. In the Sentencing Reform Act of 1984, Congress stated that alternatives to incarceration are the appropriate treatment of first offenders not convicted of a violent or otherwise serious offense. 28 U.S.C. sec. 994(j). The proposed amendment would direct the court to impose a sentence other than imprisonment if the defendant is a true first offender and the instant offense did not involve violence. The proposal presents a couple of options for determining if the offense was violent.

3. The Commission also includes a proposal to combine sentencing zones B and C, allowing people with guideline ranges topping out at 18 months a wider variety of sentencing option.

Youthful Offenders

When calculating criminal history, convictions obtained when the defendant was under 18 years old are counted toward the defendant’s total criminal history points. Crimes committed prior to 18 are handled in two different ways.

· If the defendant had been convicted as an adult for an offense committed before age 18 and the sentence was at least 13 months and was imposed or still being served within 15 years of the beginning of the instant offense, it receives criminal history points.

· If the defendant had been convicted as a juvenile for an offense committed before age 18 and the sentence was imposed or was still being served within five years of the beginning of the instant offense, it receives criminal history points.

The Commission proposes several changes to this method of counting prior crimes committed by juveniles. It also has a set of issues for comment with variations on these proposals.

1. It would exclude all juvenile offenses from being counted; that is, all prior offenses where the defendant had been sentenced as a juvenile.

2. It would provide for a downward departure for all adult convictions for offenses committed by juveniles that would have been considered juvenile convictions had the jurisdiction where the juvenile had been sentenced not considered all offenders below age 18 as “adults.”

Acceptance of Responsibility

Defendants who clearly demonstrate their acceptance of responsibility can receive a two-level reduction but the Guidelines discourage courts from awarding the two-level reduction if the defendant unsuccessfully challenges relevant conduct outlined in the presentence report. This amendment would provide that a defendant who makes a non-frivolous challenge to relevant conduct is not precluded from earning the two-level reduction for acceptance of responsibility. There is no definition of “non-frivolous.”

Criminal History

(1) Currently, sentences imposed for revocation of probation, parole, and supervised release among others earn criminal history points.

The Commission would end this practice so that sentences imposed for revocation no longer count toward criminal history points. Rather, they could be considered for purposes of an upward departure.

(2) Presently, one of the factors that determines how many criminal history points a person receives, is the length of the sentence that was imposed for the prior offense. The Commission proposes to amend the guidance on downward departures so that a downward departure could be used when the actual time the prisoner served for the prior offense was substantially shorter than the length of the sentence imposed.

Among the other proposed amendments are:

(1) One inviting an upward departure for tribal court convictions (currently not used to calculate criminal history)

(2) A 2- to 4-level increase for a conviction under any of three statutes concerned with certain Social Security fraud

(3) Proposal to Redefine “counterfeit drugs” for consistency

(4) Amendment to changes “marijuana equivalency” (which is used to come up with one guideline range when dealing with a variety of drugs in one offense) to “converted drug weight.”

(5) Amendment to use of a computer enhancement for certain offenses relating to trafficking of minors for commercial sex offenses.

Finally, the Commission published an issue for comment regarding MDMA sentencing.

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