Federal Sentencing for Zero-Point Offenders: New USSG §4C1.1 Effective November 2023

For those who are arrested and prosecuted in Texas for federal crimes, sentencing upon conviction is very different than if they had been charged for violations of Texas criminal law.  In federal matters, an independent federal agency created by Congress in 1984, the United States Sentencing Commission (USSC), will fix their punishment through its sentencing guidelines.

Why is this agency involved?  The main purpose of the USSC is to draft and implement strategic guidelines for federal judges to use in all federal punishments.  These are our United States Sentencing Guidelines (USSG).

The USSG exist to try and make punishments fair, uniform, and standardized across the nation.  The rationale is that the USSG can protect and prevent someone in Alaska, for instance, from receiving a much different sentence than someone in Florida or Texas or Maine, after being convicted for the same crime.  The USSC explains that the goal is “… to reduce sentencing disparities and promote transparency and proportionality in sentencing.”

The USSG calculate the appropriate sentencing range for the individual defendant who has been convicted of a federal crime.  This is done by using the USSG’s Sentencing Table.  First, the “offense level” is calculated, using the convicted crime and considering things that enhance punishment, like the use of a deadly weapon during the crime’s commission.  Then, the “criminal history” is calculated, where prior offenses are tallied.

For more on how the Sentencing Table works to calculate possible sentences, read our discussions with examples in:

• Money Laundering and Federal Sentencing Guidelines;
• Heroin Trafficking in Texas and Federal Sentencing Guidelines;
• Methamphetamine Trafficking and Federal Sentencing; and
• Federal Sentencing Guidelines: Conspiracy to Distribute Controlled Substance Cases.

Periodically, the USSG are amended as crime policies change.  Amendments are proposed, debated, enacted, and published by the USSC.  Their amendments must be reviewed and approved by Congress.

In 2023, the USSC announced several amendments to its sentencing guidelines.  The latest version of the USSG will be effective in November 2023, unless Congress deems otherwise.  The entirety of these November 2023 amendments, as adopted by the USSC, are available online.

From USSC Chair Carlton W. Reeves, pointing to 2023 having the first quorum of Commissioners since 2018:

“The Sentencing Commission is back in business.  Today, we are listening to Congress and the public by increasing first steps toward second chances, taking targeted action on gun trafficking and fentanyl, and expanding alternatives to incarceration. The policies issued today are common-sense ideas that will increase public safety while strengthening our communities.” 

First Steps Toward Second Chances:  What is a Zero Point Offender?

Arguably the most important guideline amendment in the latest USSG changes is the addition of USSG §4C1.1, providing a two (2) level reduction for first time offenders with some exclusions.

Let’s consider what this means.

First, this is a new provision introduced into the USSG.  It focuses upon “zero-point offenders,” and provides how they are to be considered differently than those who face sentencing with a past criminal record.

What are “zero-point offenders” under the USSG?  This is newly defined class of offender.  The new USSG §4C1.1 explains that “zero-point offenders” are those offenders with no criminal history points, including:

(1) offenders with no prior convictions;

(2) offenders who have prior convictions that are not counted because those convictions were not within the time limits set forth in subsection (d) and (e) of U.S.S.G. §4A1.2; and

(3) offenders who have prior convictions that are not used in computing the CHC for reasons other than their “staleness” (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions).

The USSG Sentencing Table: Criminal History and Recidivism

The USSG Sentencing Table is found in Chapter Five of the USSG Manual, and it is divided into six “criminal history” categories.  The lowest of these categories applies to offenders who have zero criminal history points or just a single point.

The USSC, in preparing its latest amendments, considered the recidivism of offenders with zero criminal history points.  What is recidivism?  The National Institute of Justice explains:

Recidivism is one of the most fundamental concepts in criminal justice. It refers to a person’s relapse into criminal behavior, often after the person receives sanctions or undergoes intervention for a previous crime.

The Commission found that:

• offenders with zero criminal history points (“zero-point offenders”) have considerably lower recidivism rates than other offenders, including offenders in CHC I with one criminal history point.
• “zero-point” offenders were less likely to be rearrested than “one point” offenders (26.8% compared to 42.3%).
• This represents the largest difference in recidivism rates of any comparison of offenders within the same CHC.

The New Adjustment for Certain Zero-Point Offenders

As a result, the Commission has introduced the new Sentencing Guideline, entitled “Adjustment for Certain Zero-Point Offenders,” which is found as a new Chapter Four guideline, §4C1.1, in the USSG.

The new USSG §4C1.1 does the following:

1. it provides a decrease of two levels from the offense level determined under Chapters Two and Three for offenders who did not receive any criminal history points under Chapter Four, Part A and whose instant offense did not involve specified eligibility criteria.
2. It defines “zero-point offenders” as those offenders with no criminal history points, including:

(1) offenders with no prior convictions;

(2) offenders who have prior convictions that are not counted because those convictions were not within the time limits set forth in subsection (d) and (e) of §4A1.2 (Definitions and Instructions for Computing Criminal History); and

(3) offenders who have prior convictions that are not used in computing the CHC for reasons other than their “staleness” (e.g., sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions).

The Commission is clear that this new offender designation is not to be argued as newly minted.  From the Commission:  This definition reflects the long-standing and carefully crafted criminal history rules set forth in Chapter Four regarding which prior convictions count for criminal history purposes and which do not.

Application of the New Guideline USSG §4C1.1 and Exceptions to Its Use

In tandem with drafting this new reduction guideline, the new USSG also provides for circumstances where the zero-point offender is illegible for its application in sentencing.  This is where the matter involves circumstances where the seriousness of the instant offense of conviction or the existence of aggravating factors in the offense blocks the use of USSG §4C1.1.

The newly created U.S.S.G. §4C1.1 provides a 2-point reduction in the offense level for certain zero-point offenders.  To apply USSG §4C1.1, in addition to having zero criminal history points, all of the following criteria must be met or the offender is excluded from its application:

• the defendant did not receive an adjustment under 3A1.4 (Terrorism);
• the defendant did not use violence or credible threats of violence in connection with the offense;
• the offense did not result in death or serious bodily injury;
• the instant offense of conviction 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 otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
• the instant offense of conviction is not covered by §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 under §3B1.1 (Aggravating Role) and
• was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

The Commission also explains:

These exclusionary criteria were informed by extensive data analyses, public comment, and existing legislation, including the congressionally established criteria for the statutory safety valve at 18 U.S.C. § 3553(f) and the recent firearms legislation set forth in the Bipartisan Safer Communities Act.

• For more on safety valves, read our discussion in Less Time For Federal Drug Crimes: When Safety Valve Defense Circumvents Mandatory Minimum Sentences Under Federal Law.

Important Note to Amended USSG §5C1.1

Defense practitioners should be aware that the USSC references this new Guideline in its amended USSG §5C1.1, where its application note 4 provides that a sentence other than imprisonment is generally appropriate if (1) a person is in Zone A or B of the Sentencing Table and (2) eligible for the new USSG § 4C1.1 reduction.

This new note also provides that a departure, including a non-imprisonment sentence, may be suitable for a person in any sentencing zone if (1) they qualify for USSG §4C1.1 and (2) the guidelines range overstates the gravity of the offense. See, USSC Amendments to the Sentencing Guidelines, Policy Statements, Official Commentary, and Statutory Index, page 53.

Will Application of USSG §4C.1.1 Be Retroactive?

The USSC is considering the application of some of its amendments to be retroactive, including USSG §4C.1.1, and has asked for comment (emphasis added):

The Commission seeks comment on whether it should list Parts A and B of the amendment, addressing the impact of “status points” at §4A1.1 and offenders with zero criminal history points at new §4C1.1, in subsection (d) of §1B1.10 as changes that may be applied retroactively to previously sentenced defendants. For each of these parts, the Commission requests comment on whether that part should be listed in subsection (d) of §1B1.10 as an amendment that may be applied retroactively.

The deadline for comments was June 23, 2023.  Comments sent after this deadline may or may not be considered by the Commission.  From the Federal Register (emphasis added):

Effective Date of Amendments. The Commission has specified an effective date of November 1, 2023, for the amendments set forth in this notice. Written Public Comment. Written public comment regarding retroactive application of Parts A and B of Amendment 8, should be received by the Commission not later than June 23, 2023. Any public comment received after the close of the comment period may not be considered.

At its April 2023 meeting, the Commission also voted both to have a retroactivity impact analysis prepared by its staff for its deliberation in making the new Zero Point Offender Guideline available for those who have already been convicted and sentenced.

Clearly, the potential retroactive application of this new Sentencing Guideline for Zero Point Offenders is being given serious consideration by the USSC.  If it is made retroactive, then those who have been sentenced and are currently incarcerated in federal facilities would be eligible to have their sentences re-evaluated in light of the new Guideline.

A Welcomed Change in Federal Sentencing Policy and Procedure

For criminal defense lawyers practicing in federal court, this new Zero Point Offender addition to the United States Sentencing Guidelines is welcomed news.  Even more so is the very real possibility that it may be applied retroactively, given the perspective of the new Commission.

Explains USSC Vice Chair Laura Mate:

“Our new policies revise the sentencing guidelines based on empirical research and experience.  This careful, evidence-based approach will increase fairness in sentencing and keep our communities safe.”

Most experienced criminal defense lawyers in Texas are well aware of incarcerated individuals who could be freed for a second chance at life if there is a retroactive application of this new USSG.  Loved ones should be cautiously optimistic that there may be a second chance available for their son, brother, husband, sister, wife, father, or mother, very soon.  Defense attorneys should be ready to answer their questions, and to provide help to them should the predicted retroactive application be adopted by the Commission.

The bottom line:  both (1) those who are facing federal charges as well as (2) those who are already sentenced may have a brighter future with the new Zero Point Offender Sentencing Guideline.

For more, read:

• Federal Sentencing for Drug Couriers and Drug Mules
• Marijuana Trends and Sentencing in the Federal System: New 2023 USSC Report
• Policy Changes in Charges, Pleas, and Sentencing for Federal Drug Crime Prosecutions: New AG Garland DOJ Directive
• Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview
• Bail after Federal Arrest in Texas and The Bail Reform Act of 1984
• New University of Chicago Study’s Shocking Revelations of Federal Bail Injustice: Systemic Errors and the “Culture of Detention.”

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Pre-Arrest Criminal Investigations.”