Federal Sentencing Update: New Guidelines May Offer Post-Conviction Relief for White Collar Offenders with No Criminal History

In August 2023, the U.S. Sentencing Commission announced that it would allow for the retroactive application of Amendment 821, which provides (in Part B) a decrease of two offense levels for “Zero-Point Offenders” whose crime did not involve aggravating factors.

As a result, certain currently incarcerated individuals may be eligible for reduced sentences, effective February 1, 2024.

The Advisory Sentencing Guidelines

Created by Congress in 1984, the U.S. Sentencing Commission is an independent judicial agency. The Commission’s aim is to reduce sentencing disparities and promote transparency by issuing nationwide sentencing guidelines through its Guidelines Manual. Although these guidelines are not binding, the U.S. Supreme Court has stated that district courts “should begin all sentencing proceedings by correctly calculating the applicable Guidelines range,” which “should be the starting point and the initial benchmark.” Gall v. United States, 552 U.S. 38, 49 (2007).

Federal judges imposing a sentence must account for a variety of factors, like the number of victims of the crime, its seriousness, and the associated financial loss. Each factor has a corresponding number of points, and they are added together to get to a “Total Offense Level.” The Total Offense Level is then compared to a sentencing table that sets advisory ranges for a prison term (in months of imprisonment). Importantly, judges also consider the criminal history of a defendant, in which a history of serious crimes places that defendant in a higher “Criminal History Category.”

After reviewing the Guidelines and Sentencing Table, a sentencing judge must consider seven statutory factors established in Title 18, United States Code, Section 3553(a):

• The nature and circumstances of the offense and the history and characteristics of the defendant
• The purpose of sentencing
• The kinds of sentences available
• The Guidelines range
• “Any pertinent policy statement” issued by the Commission
• The need to avoid unwarranted sentence disparities among defendants
• The need to provide restitution to any victims of the offense18 U.S.C. § 3553(a)(l)-(7).

The Guidelines play an important role in the federal sentencing scheme, given that judges must begin by calculating the advisory Guidelines range before considering the statutory factors.

Amendment 821 and Its Retroactive Application

Unanimously passed by the Commission in April 2023, Amendment 821 includes Parts A and B, both of which affect the Guidelines. Part A limits the overall criminal history impact of “Status Points.” Status Points are the additional criminal history points given to defendants for having committed the offense while under a criminal justice sentence, like probation, parole, supervised release, imprisonment, work release, or escape status, under §4A1.1 (the Criminal History Category).

Part B also decreases by two points the offense levels for defendants who did not receive any criminal history points and whose offense did not involve specific aggravating factors. Specifically, Part B of Amendment 821 applies to a criminal defendant who meets all of the following criteria:

• They did not receive any criminal history points from Chapter Four, Part A
• They did not receive an adjustment under §3A1.4 (Terrorism)
• They 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 offense of conviction is not a sex offense
• They did not personally cause substantial financial hardship
• They 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 offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights)
• They did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense)
• They did not receive an adjustment under §3B1.1 (Aggravating Role) and were not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848

If a defendant meets all of these, then the federal judge should decrease the offense level determined under Chapters Two and Three by two levels.

Under Part B, some defendants can now qualify for shorter sentences or even non-custodial alternatives. Furthermore, because of Amendment 821’s proposed retroactive application, incarcerated individuals convicted for the first time of non-violent crimes, such as white collar offenses, could likely see months or years off of a sentence they are serving. In essence, the two-point reduction will shorten the corresponding advisory sentencing guidelines range.

Part B Policy Implications

The driving force behind implementing Part B is the Commission’s congressional directive to ensure that the Guidelines “reflect the general appropriateness of imposing a sentence other than imprisonment in cases in which the defendant is a first offender who has not been convicted of a crime of violence or an otherwise serious offense.” 28 U.S.C. 994(j).

The proposed adjustments for zero-point offenders is an important step towards a more proportional and case-by-case approach to sentencing in the federal criminal system. By acknowledging that not all zero-point offenders are the same, judges are able to consider the unique circumstances of each case. As a result, federal sentences can be more tailored to reflect a defendant’s culpability, which promotes greater fairness and justice. This also means currently incarcerated individuals that are first time offenders can seek sentence adjustments to reflect a more proportional term of imprisonment. Importantly, research shows that individuals with zero criminal history points have substantially lower recidivism rates than other sentenced individuals. See U.S. Sent’g Comm’n, Recidivism Among Federal Offenders: A Comprehensive Overview, at App’x A-2 (March 2016).

The Commission estimates that retroactive application of Amendment 821, Part B, would positively affect many currently incarcerated individuals. Around 7,200 incarcerated individuals would be eligible for a lower sentencing range, with an approximate sentence reduction of 17.6%, on average.

Congress’s Role

Amendments to the Commission’s Guidelines must be reviewed by Congress before going into effect. As a result, Amendment 821 and its retroactive application will be with Congress for a 180-day review period, with the end date set for November 1, 2023. If Congress does not vote to disapprove Amendment 821 or its retroactivity, it will go into effect from that date forward. Courts can then immediately consider petitions for sentence reductions and could order a reduced term of imprisonment beginning February 1, 2024.

Notably, the Commission has amended the Guidelines Manual more than 800 times. In the history of the Commission, there has only been one instance in which Congress rejected proposed amendments to the Guidelines. Thus, Amendment 821 will likely go forward along with its retroactive application on November 1, 2023.

Applying For a Reduced Sentence

In the likely event that Amendment 821 and its retroactive application go into effect on November 1, 2023, currently incarcerated individuals will be eligible to seek reduced sentences beginning on February 1, 2024. A currently incarcerated individual will be able to file a motion to reduce the term of imprisonment; upon receiving such motion, the court will have the discretion to reduce the term of imprisonment to one based on the sentencing range lowered by the Commission.

If the court decides that a reduction complies with policy statements issued by the Commission, the court may grant the motion. It is important to note that it is the sentencing court’s discretion to reduce the term of imprisonment, and Amendment 821 does not require the court to do so.

In determining whether to reduce a sentence, the judge will also reconsider all of the factors presented at the initial sentencing. This includes considering the surrounding circumstances and nature of the offense, the characteristics of the defendant, deterrence of the crime, and the Guidelines. There will likely also be explicit attention to public safety, including a review of the incarcerated individual’s record and behavior while in prison.

Authors:

Vince Farhat, Partner, Chair of the White Collar Defense & Investigations Group
Vatche Zetjian, Of Counsel
Lena Streisand, Associate
Celine Ohanian, Associate

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