Retroactive US Sentencing Guideline (USSG) Amendments 2023

Those accused in federal court, no matter which state or which crime is involved, will have punishment after conviction determined in accordance with the United States Sentencing Guidelines (USSG) compiled and published by the United States Sentencing Commission (USSC).  This is a critical difference between the state and federal criminal justice systems.

What is this Commission?  The USSC is a part of the judicial branch; however, it does not answer to the courts.  It is an independent agency tasked with developing guidelines and policy statements to be used for federal sentencing in criminal matters.  Its authority comes from Congress in 28 U.S.C. § 994(a). If Congress does not counter the activity of the USSC, it becomes effective by operation of law in the federal judicial system.  See, 28 U.S.C. § 994(p).

For several years, the USSG as implemented by the USSC remained unchanged.  Since 2018, the Commission was paralyzed because it lacked the necessary quorum. Things changed this year when the USSC got the needed number of commissioners in order to act.  And in April, amendments to the USSG were approved.

For the first time in five years, both prosecutors and defense attorneys (and of course, judges overseeing sentencing hearings) will have to deal with changes made to the longstanding guidelines.  The 2023 USSG amendments became effective last month (on November 1, 2023).

The latest USSG Manual is available online with annotations provided by the USSC. (“2023 USSG Manual”).

Of critical importance to federal criminal defense attorneys are two retroactive guidelines, which are the first retroactive sentencing guidelines we have seen in almost ten years.  The new retroactive sentencing guidelines adopted by the USSC in 2023 are in (1) USSG §4A1.1 (amended) and (2) USSG § 4C1.1 (new). See 2023 USSG Manual page 234 (“Amendment 821”).

Sentencing Guidelines and Calculation of the Sentence

In review, the USSG provides sentencing based upon Sentencing Tables where first, the type of offense for which the accused has been convicted; and second, the accused’s criminal history, are used in tandem to calculate an individual sentencing recommendation.

For more on how the USSG work (including examples with images of the Sentencing Tables), read our earlier discussions in:

• Money Laundering and Federal Sentencing Guidelines;
• Federal Sentencing Guidelines On Federal Child Pornography Cases;
• Federal Crimes and Sentencing Guidelines: Health Care Fraud;
• Methamphetamine Trafficking and Federal Sentencing; and
• Relevant Conduct In The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.

What is a Retroactive Sentencing Guideline?

As a general rule, changes made to any federal sentencing guideline do not have an impact on those who have already been sentenced in federal court.  Sentences stand as they are despite a change in the USSG in the years to come after the person was sentenced.

However, if the USSC has determined that a USSG is “retroactive,” then that guideline change may mean something important to an individual convicted of a federal crime.  Then their sentence may be subject to reconsideration and to change based upon the altered sentencing guideline.

Before anyone’s hopes are raised:  these are the exception, not the rule.  Most USSG are not retroactive.  However, some are – and others can be made that way by amendment actions of the USSC.

To determine if a Sentencing Guideline is retroactive, check the list provided in USSG § 1B1.10(d).  All retroactive guidelines are found here.

The Two Retroactive Sentencing Guidelines in November 2023

In November 2023, Amendment 821 attained the force of federal law.  Within it are the two new 2023 Retroactive Sentencing Guidelines.  They are found in Amendment 821 Part A and Amendment 821 Part B.

Go here for a chart comparing the two new retroactive sentencing guidelines prepared by the USSC.

Amendment 821 Part A:  Amended USSG §4A1.1

In Part A to Amendment 821, criminal history scores are changed in some circumstances by an amendment to USSG §4A1.1.  This guideline now reads:

Part A (Status Points under §4A1.1)

The Commentary to §2P1.1 captioned “Application Notes” is amended in Note 5 by striking “§4A1.1(d)” and inserting “§4A1.1(e)”.

Section 4A1.1 is amended—

by striking subsection (d) as follows:

“(d) Add 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”;

by redesignating subsection (e) as subsection (d);

and by inserting at the end the following new subsection (e):

“(e) Add 1 point if the defendant (1) receives 7 or more points under subsections (a) through (d), and (2) committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.”

In sum, status points are lowered from an added two (2) points to only one (1) point for an offense that occurred when the accused was on probation, parole, or supervised release in cases where the person has 7 or more criminal history points in total.  They are removed in their entirety for those who have 0 to 6 criminal history points.

What about different types of criminal charges?  The Amendment does not block eligibility here regardless of the type of crime for which the person has been convicted.  Things like weapons being used in the course of the commission of the crime are not bars to its application, either.  However, they are to be considered as factors for the court to use in deciding whether or not to approve a reduction of the sentence.

Amendment 821 Part B:  New USSG § 4C1.1

The USSC creates an entirely new sentencing guideline in Part B of Amendment 821.  The new guideline is USSG § 4C1.1.  It states as follows:

Part B (Zero-Point Offenders)

Subpart 1 (Adjustment for Certain Zero-Point Offenders)

Chapter Four is amended by inserting at the end the following new Part C:

PART C ― ADJUSTMENT FOR CERTAIN ZERO-POINT OFFENDERS

• • 4C1.1. Adjustment for Certain Zero-Point Offenders

(a) Adjustment.—If the defendant meets all of the following criteria:

(1) the defendant did not receive any criminal history points from Chapter Four, Part A;

(2) the defendant did not receive an adjustment under §3A1.4 (Terrorism);

(3) the defendant did not use violence or credible threats of violence in connection with the offense;

(4) the offense did not result in death or serious bodily injury;

(5) the instant offense of conviction is not a sex offense;

(6) the defendant did not personally cause substantial financial hardship;

(7) 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;

(8) the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);

(9) the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and

(10) 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;

decrease the offense level determined under Chapters Two and Three by 2 levels.

(b) Definitions and Additional Considerations.—

(1) ‘Dangerous weapon,’ ‘firearm,’ ‘offense,’ and ‘serious bodily injury’ have the meaning given those terms in the Commentary to §1B1.1 (Application Instructions).

(2) ‘Sex offense’ means (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 recordkeeping 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.

(3) In determining whether the defendant’s acts or omissions resulted in ‘substantial financial hardship’ to a victim, the court shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to §2B1.1 (Theft, Property Destruction, and Fraud).

In sum, this new USSG gives those with no criminal history points (called “Zero-Point Offenders”) a decrease in two offense levels on the Sentencing Table when the offense meets certain criteria.

For details, read our discussion in: Federal Sentencing For Zero-Point Offenders: New USSG §4C1.1 Effective November 2023.

How to Get a Reduction Based Upon 2023 Retroactive Sentencing Guideline

Sentence reductions based upon these retroactive guideline amendments will be sought by a formal motion filed pursuant to 18 USC § 3582(c)(2) which provides for a “modification in the term of imprisonment” if:

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 applicable policy statements issued by the Sentencing Commission.

This law requires that the judge hearing this sentencing reduction motion consult with USSG §1B1.10, entitled Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement), which identifies if a sentence reduction is available under 18 USC § 3582(c)(2).

Key Factors: Sentencing Reduction Motion Based Upon 2023 Retroactive Sentencing Guidelines

First, these motions will be given serious consideration by the federal court (as all motions filed before the federal bench receive).  There is no requirement that an attorney licensed to practice in federal court research, prepare, and file this motion.  The incarcerated person has a right to file a request with the court without the aid of legal counsel.

However, having a criminal defense attorney seems the wise course to take, given the realities of these cases.  Consider the following:

Establish the Retroactive Sentencing Guideline Applies to the Incarcerated Individual

First, the movant must demonstrate the new retroactive sentencing guideline reduction applies to their situation.

• The Status Point retroactive sentencing guideline in amended USSG §4A1.1 requires the movant show that taking off the maximum of two points will result in a lower Criminal History calculation in the USSG Sentencing Table. If it doesn’t, then the new retroactive guideline will not result in a sentencing reduction and the motion will be denied.
• The new USSG § 4C1.1 mandates that the movant provide both argument and evidence that the conditions provided within that new guideline (see above) are met by the Movant. Without this showing, the motion will be denied.

Judicial Discretion Regarding Any Sentencing Reduction

Second, proving up that one of the two new Retroactive Sentencing Guidelines applies in the movant’s circumstances is an important hurdle, but it’s not the complete race.  There is also the court’s discretion that must be considered.  The judge has the ability to make a decision that gives you a maximum reduction equal to the bottom of your new sentencing range in the Sentencing Table calculation.

However, the judge can also decide that the sentence reduction can be less than that this maximum.  See USSG §1B1.10.  And, importantly, the judge can even hear a motion for sentence reduction that meets the criteria for application of one of the new Retroactive Sentencing Guidelines and decide that nope, there will be no change in the sentence whatsoever.  This is within the judge’s discretion.

Advocacy for Retroactive Sentencing Guideline Application

Accordingly, the importance of advocacy with these new motions will be extremely important.  The courts will be dealing with the first USSG changes since 2018, alongside prosecutors and defense counsel.  The more well-reasoned and clearly worded these requests are, the better for everyone concerned.

Details about the individual’s activities after conviction will be vital here, alongside their past criminal history prior to sentencing, and a recognition that the requested reduction will comport with the sentencing factors of 18 USC § 3553(a). A good behind-bars record may be very influential in the extent of the sentencing reduction that the judge will determine to be appropriate.

Seeking a Federal Sentence Reduction Based Upon New Retroactive Guidelines

These new retroactive guidelines will likely form the basis of a great many post-conviction motions for sentence reductions in federal court. It is anticipated that there may be hundreds or even thousands of these motions filed, requesting a review of a current sentence.

All experienced criminal defense lawyers recognize that criminal history must be a focus for the defense in any sentencing consideration.

From a criminal defense perspective, time is important in these cases.  The longer the time that has passed since a past criminal act can be an important argument in a sentencing hearing.  See, e.g., Kurlychek, Megan C., Robert Brame, and Shawn D. Bushway. “Scarlet letters and recidivism: Does an old criminal record predict future offending?.” Criminology & Public Policy 5.3 (2006): 483-504. (Six years or more considered key factor in reduced risk of continued offenses.)

And then there are those without any criminal history, and who therefore have no Criminal History Points to be used in a USSG calculation under the Sentencing Tables.  These people obviously deserve the type of relief recognized by the USSC in their new 2023 Amendments.  Zero-point offenders are simply less likely to be (or become) repeat criminals or career criminals and federal sentencing calculations should reflect this circumstance.

For more, read:

• When Someone Becomes A “Career Offender” Under Federal Law
• Federal Sentencing for Drug Couriers and Drug Mules
• Bail after Federal Arrest in Texas and The Bail Reform Act of 1984
• Fort Worth Federal Judge John McBryde Child Porn Downward Departure Sentence.

NOTE:  For more on the 2023 Retroactive Sentencing Guidelines, read the Primer published by the Office of the General Counsel for the United States Sentencing Commission, which includes the following caveat:

The Commission’s legal staff publishes this document to assist in understanding and applying the sentencing guidelines. The information in this document should not be considered definitive or comprehensive. In addition, the information in this document does not necessarily represent the official position of the Commission on any particular issue or case, and it is not binding on the Commission, the courts, or the parties in any case. To the extent this document includes unpublished cases, practitioners should be cognizant of Fed. R. App. P. 32.1, as well as any corresponding rules in their jurisdictions.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, read “Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.”