ALERT 2020 Update for October 25, 2023 – New Amendments to the U. S. Sentencing Guidelines--

ALERT 2020 Update for October 25, 2023 – New Amendments to the U. S. Sentencing Guidelines –

The Justices next conference will be on October 27, 2023.Because we continue to receive a huge number of inquiries regarding the new Amendments to the Sentencing Guidelines becoming effective November 1, 2023 and February 1, 2024, we are again going to explain the two Amendments which we believe will have the greatest impact.

I. USSG Amendment 814

Amendments to §1B1.13 Reduction in Term of Imprisonment under 18 U.S.C. § 3582(c)(1)(A) (Compassionate Release). The amendments describe new “extraordinary and compelling reasons” that might warrant a reduction in sentence. In addition to the existing medical, geriatric, and family circumstances reasons, the Commission proposes to add new extraordinary and compelling reasons:

● Inadequate medical care: This provision covers individuals who are suffering from a medical condition and require, but are not receiving, long-term or specialized care, putting them at risk of serious deterioration or death.
● Pandemic health: Reflecting lessons learned from COVID, this new ground covers individuals who are (1) housed at a correctional facility that is affected by or at imminent risk of an ongoing infectious disease outbreak or public health emergency; and (2) who, due to personal medical conditions, are at increased risk of suffering from severe complications or death that cannot be mitigated should they be exposed.
● Family circumstances: Certain family circumstances have long been grounds for a reduction in sentence, such as release to care for a minor child when the incarcerated person is the only available caregiver. The Commission’s amendment recognizes that individuals also may be eligible for reduction if they are the only available caregiver for a debilitated parent or adult child who is incapable of self-care because of a mental or physical condition. The Commission also allows defendants to demonstrate that there may be others who are similar in kind to immediate family members, for whom the defendant would be the only caregiver.
● Sexual and physical abuse: This provision covers individuals who are survivors of sexual abuse by prison personnel, as well as survivors of physical abuse by prison personnel that results in serious bodily injury. The misconduct must be established by a finding in a civil, criminal, or administrative proceeding, unless those proceedings are unduly delayed or the individual is facing imminent danger.
● Other reasons: The Director of the BOP always has had broad discretion to identify other reasons for a sentence reduction. The new provision provides a more limited authority. It gives the BOP Director and judges the discretion to identify an unlisted extraordinary and compelling reason. The other reasons must be similar in gravity to the ones expressly listed in the policy statement: terminal illness, serious medical condition, advanced age, extreme family circumstance, and sexual or physical abuse.
● Unusually long sentences: This provision gives judges discretion, after full consideration of the prisoner’s individualized circumstances, to determine whether a change in the law that would result in a lower sentence today could be a ground for sentence reduction. The person must have served at least ten years of an unusually long sentence, and there must be a gross disparity between the sentence being served and the one that would be imposed today. (Changes to the guidelines that are not made retroactive cannot be considered a change in the law for purposes of this ground.)

II. USSG Amendment 82

On August 24, 2023, the U. S. Sentencing Commission by a majority vote allowed for delayed retroactive application of Amendment 821 relating to criminal history — meaning that certain currently incarcerated individuals could be eligible for reduced sentences made effective beginning on February 1, 2024.

Part A of the amendment addresses “Status Points,” decreasing them by one point for individuals with seven or more criminal history points and eliminating Status Points for those with six or less criminal history points. The amendment retains status points in a more targeted fashion for offenders with seven or more criminal history points. Applying status points to a more targeted group of offenders continues to serve the broader purposes of sentencing while also addressing some of the other concerns raised regarding the impact of status points.

Part B creates a new § 4C1.1 guideline that provides a decrease of 2 offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors. The amendment revises §5C1.1 to provide guidance regarding the appropriateness of a sentence other than prison for certain first offenders—as directed by 28 U.S.C. § 994(j). The eligibility criteria is finely tailored—excluding offenders from eligibility based upon offense seriousness and aggravating factors. The exclusionary criteria were again informed by extensive data analyses and public comment as well as by existing congressional legislation.

Part C amends the § 4A1.3 Commentary to include prior marijuana possession sentences as an example of when a downward departure may be warranted for criminal history reasons.

The Commission estimated in its July 2023 Impact Analysis that retroactive application would carry a meaningful impact for many currently incarcerated individuals:

■ 11,495 incarcerated individuals will have a lower sentencing range under Part A of Amendment 821 relating to “Status Points” with a possible sentence reduction of 11.7%, on average.
■ 7,272 incarcerated individuals would be eligible for a lower sentencing range based upon the established criteria under Part B of Amendment 821 relating to “Zero-Point Offenders” with a possible sentence reduction of 17.6%, on average.

COMMENT:

With regard to the USSG Guideline Amendments coming into effect on November 1, 2023 and February 1, 2024, we will be sending out a Special Edition Newsletter next week regarding the those Amendments. If you want to know whether you qualify for any of those Amendments, we suggest that you opt for a Written Case Evaluation (WCE) ASAP to make that determination.

Alert2020 believes now is the time to start preparing to file these motions to get at the front of the line instead of at the end of the line. Further, if you believe you have a Dubin, Range/Bruen, Rehaif, Taylor, Concepcion, Ruan, Davis, Earned Time Credit or any other claim and want to see if you may have relief coming should opt for a WCE. Anyone who thinks that they may also qualify for compassionate release under USSG Amendment 814 or the criminal history USSG Amendment 821, or any other remedy should request a WCE (we no longer offer Free Lookups).

For the last 29 years, we have been very successful on direct appeals, 2255 motions, 2241 Petitions, First Step Act and Compassionate Release Motions, 18 U.S.C. § 3582(c)(2) Motions, DC Superior Court Petitions, State Post Conviction, Clemencies and Pardons to mention a few avenues for relief we cover. We also can help you with Earned Time Credits and other specialized motions. The WCE is an excellent tool to see what can be done for you at any stage of the proceedings. It is thorough and detailed from day one of your case with our recommendations of any remedies available to gain relief.

If you are serious about fighting your case and want us to evaluate your case to see if you may have relief coming, request a Written Case Evaluation.