In a landmark decision, the United States Sentencing Commission (USSC) voted 4-3 in favor of deferred retroactive application of the penal code. Amendment 821, which relates to criminal history. This important step makes certain inmates eligible for reduced sentences, with the changes retroactively taking effect from February 1, 2024.
Amendment 821 itself introduces the newly created Section 4C1.1 of the U.S. Sentencing Guidelines which will go into effect on November 1, 2023 and will apply to current cases as well as retroactively.
Understanding Amendment 821: Two-level reduction for zero-point violators
Amendment 821 introduces new Chapter 4 guidelines in §4C1.1 titled “Adaptation for Certain Zero Point Violators.” This guideline provides a two-level reduction from the crime level specified in Chapters II and III. It applies to defendants who:
- I didn’t get any points for criminal history and
- whose direct crime did not include any aggravating factors.
Most white-collar defendants have no criminal history, so this amendment could result in reduced sentences for many white-collar crimes. This is also expected to impact a significant number of lower-level drug crimes.
Who can’t benefit from Amendment 821’s two-level reduction for zero-sum violators?
An individual cannot benefit from Amendment 821 if:
- king any Previous criminal history points;
- Credibly using violence or threats of violence in connection with the crime;
- Causing death or serious bodily injury by reason of the crime;
- committed a sexual offense;
- Personally It caused great financial distress;
- received a terrorism amendment under § 3A1.4;
- possessedOr receive, buy, transfer, transfer, sell or dispose of it A firearm or any other dangerous weapon (or induce another person to do so) in connection with the offence;
- committed a civil rights offense listed in Section 2H1.1 (Crimes Involving Individual Rights);
- committed a hate crime;
- Received an amendment under § 3A1.1 (hate crime motive or vulnerable victim), § 3A1.5 (serious crime against human rights), or § 3B1.1 (aggravated role); or
- Engaged in a continuing criminal enterprise, as defined at 21 USC § 848.
Status points changes in edit 821
Amendment 821 also specifically targets the effect of providing additional criminal record points to offenders under a criminal justice sentence, known as “status points.”
In the current guidelines, the offender is assigned two criminal history points, Known as ‘case points’, if they committed the current offense while under any form of criminal justice sanction. This includes situations where the offender was on probation, parole, supervised release, incarceration, work release, or even an escape situation.
Who is eligible to adjust a status point?
This applies to individuals whose sentences included status points, which is an increase in sentence because at the time of the crime they were serving another sentence, such as probation or parole.
Changes in application of status points under 4C1.1
The 2023 amendment aims to limit the impact of these “status points”. The changes are as follows:
- The Status Points provision will now only apply to offenders with more serious criminal histories under the guidelines.
- Offenders with less serious criminal histories, specifically those with six or fewer criminal history points, will no longer receive Status Points.even if their current offense was committed while they were under criminal justice jurisdiction.
- For criminals who are under the jurisdiction of criminal justice and have Seven or more criminal history points, only one additional criminal history point will now be assessed, unlike the previous two.
New comment in 5C1.1 for zero point violators
Although most federal cases are resolved with prison time for defendants, this amendment also comes with a presumption against prison time for eligible defendants. This assumption is found in the commentary to USSG § 5C1.1
It provides a presumption against imprisonment for defendants who
- Obtain a zero point adjustment for the violator
- It has a recommended guideline range within zones A or B.
The defendant may be able to qualify outside Areas A and B, if
- They receive a zero point adjustment for the offender and
- The scope of the applicable guidelines overstates the seriousness of the crime because the offense of conviction is not a crime of violence or other serious crime.
The effect of retroactive application of Amendment 821
the Analysis of the impact of the United States Sentencing Commission as of July 2023 Highlights the potential implications of this retrospective application:
- 11,495 inmates will have a reduced sentencing range under Part A of Amendment 821, with an average sentence reduction of 11.7%.
- 7,272 inmates will be eligible for a reduced sentencing range under Part B of Amendment 821, for an average sentence reduction of 17.6%.
A new era for the US Sentencing Commission?
The USSC, after achieving a quorum of commissioners for the first time since 2018, actively voted on amendments to the Federal Sentencing Guidelines. The retroactive measure passed by one vote and came as a surprise to many. Recent evidence-based research by the Commission has indicated that Status Scores may not be as effective in predicting criminal history outcome as initially expected. This realization led to the decision to improve the treatment of “status points” and “zero points” under Chapter IV of the Guidelines. Could this mark a new era for the USSC? Only time will tell.
How to apply for relief
U.S. Section 3582(c)(2) allows a defendant to file a motion to reduce the term of imprisonment based on changes made by the sentencing commission. The court that issued the ruling may reduce the prison term, but is not obligated to do so. §1B1.10. The reduction in prison time as a result of the revised Guideline Scope (Policy Statement) states that this is not a full re-sentencing.
When can defendants begin receiving relief?
Defendants currently incarcerated are officially eligible for reduced sentences starting February 1, 2024.
What should you do if the two-level reduction applies to you?
If you believe you qualify for relief under this amendment, contact an attorney to help you. The attorneys at Varghese Summersett can be reached at (817) 203-2220.