How Do The New 2023 Federal Sentencing Guideline Amendments Impact A Defendant’s Criminal History Score?

General Overview of the Federal Sentencing Guidelines

If you are charged with a crime in federal court anywhere in the United States—from San Diego to Boise to Maryland—it is important to understand and learn about the federal sentencing guidelines that will significantly affect your case and potential custody exposure at sentencing. The United States Sentencing Commission is a federal judicial agency with the purpose of establishing sentencing polices and standard sentencing practices in federal courts throughout the United States. The Sentencing Commission has broad authority to review the federal sentencing process and establish sentencing guidelines meant to further the basic judicial principles of punishment: incapacitation, deterrence, rehabilitation, and just punishment.

At sentencing, it is mandatory for a federal judge to consider the sentencing guidelines and impose a sentence they deem appropriate within the guideline range. A judge may, however, impose a sentence outside of the guideline range under 18 U.S.C. § 3553 if the judge feels that a particular case presents atypical facts, and the individual defendant is deserving of a guideline variance.

New 2023 Sentencing Guidelines – Amendment #821

The United States Sentencing Commission voted to amend the federal sentencing guidelines in 2023 to include new guidelines for federal judges to consider when imposing a sentence. Of significance, Amendment #821 went into effect in November 2023. This amendment created new rules for calculating a defendant’s criminal history and new departures for certain qualifying individuals under the federal sentencing guidelines.

Status Points in Federal Sentencing

The first part of Amendment #821 focused on “status points.” Prior to November 2023, a defendant’s criminal history score was increased by (+2) if the instant offense was committed while the individual was still serving a sentence from another case. For example, if an individual was on state probation and convicted of a new federal offense, they would receive a (+2) in status points to their overall criminal history score, potentially increasing their guideline range at sentencing if the additional points caused the defendant’s criminal history category to change. The United States Sentencing Commission reviewed how status points were being applied throughout federal courts around the country and found that over 1/3 of federal defendants received a (+2) in status points as part of their criminal history scores. Further, over 60% of defendants who received such an increase were placed in higher criminal history categories because of their status points. The Commission also found that federal defendants who received status points had similar recidivism rates to those who did not receive any status points at sentencing.

Due to the minimal effect that status points have on recidivism and the vast number of federal defendants this increase was being applied to at sentencings, the Commission voted to amend the status point guideline and target only individuals with 7+ criminal history points to apply this increase to. This means that under the new November 2023 guidelines, status points will no longer be applied to federal defendants with 6 or less criminal history points at the time of sentencing.

Zero-Point Offenders in Federal Sentencing

The United States Sentencing Commission also analyzed recidivism data suggesting that defendants with zero criminal history points are much less likely to reoffend than defendants who have other criminal history. Research suggested that “zero-point offenders” have significantly lower recidivism rates than individuals with even 1 criminal history point (27% compared to 47%). This was the largest variation of any comparison of defendants within the same criminal history category. The Commission addressed this disparity by implementing a new guideline to provide a (-2) level reduction for certain zero-point offenders at the time of sentencing.

A federal defendant must meet all of the following criteria to qualify for the new zero-point offender reduction:

1. The defendant did not receive any criminal history points from Chapter 4, 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 offense is not a sex offense;
6. The defendant did not personally cause 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 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.

This new guideline has an important impact for defendants in federal court with zero criminal history points. If they have no criminal history points and meet the above criteria, they will be eligible for a (-2) level reduction in their overall sentencing guidelines adjusted offense level and may receive a lower sentence from the judge. This “zero-point offender” reduction applies to federal defendants with 0 criminal history points, not necessarily zero criminal history. This means that individuals with minor or dated criminal records that don’t score under the guidelines may still be eligible for this reduction.

Marijuana Possession Priors in Federal Sentencing

Although legalized in many states, marijuana remains a federally controlled substance and is illegal under federal law. This means that federal defendants with prior scoring marijuana convictions face higher sentences under the guidelines due to their increased criminal history points. The United States Sentencing Commission considered the shifting trends in marijuana laws through out the states and the impact prior state marijuana convictions have on sentences in federal court. The Commission found that approximately 97% of federal defendants’ scoring marijuana priors were from state court—including states that had since changed their laws to legalize and decriminalize marijuana. In some cases, federal defendants even received additional criminal history points from prior marijuana convictions that had been sealed/expunged in state court due to changes in state laws, but still scored under federal law.

The Commission addressed this issue by including new commentary in the November 2023 guidelines that warrants a downward departure for individual defendants whose criminal history score is increased by a prior marijuana conviction.

Non-Custodial Federal Sentences

The United States Sentencing Commission also added new commentary to the guidelines, stating that punishment “other than a sentence of imprisonment… is generally appropriate” for defendants who receive a “zero-point offender” reduction and who fall within Zone A or B on the sentencing guideline table. The Commission considered the significant increase in custodial sentences over the past 40 years and the low number of federal defendants who received non- custodial sentences in federal court (only 6.2% of federal defendants received straight probation in 2022, as compared to 50% of federal defendants who received straight probation when the Sentencing Reform Act was first enacted in 1984).

The Commission advised in the new 2023 guideline amendments that federal judges should consider non-custodial sentences more often for certain qualifying defendants in Zone A or B with zero scoring criminal history. The Commission further advised that a person within Zone C or higher may also qualify for a non-custodial sentence if the guideline range overstates the gravity of the offense and the judge determines a sentence other than imprisonment is appropriate for that individual defendant.

The New 2023 Federal Sentencing Amendments are “Retroactive”

The United States Sentencing Commission voted to make the new 2023 guideline amendments “retroactive.” This means they apply to new sentences and also to previous sentences that were already imposed under the old guidelines.

If you or a loved one has been convicted in federal court, it is important to understand and consider these new amendments to the federal guidelines and how they may impact you at sentencing. At the Law Offices of David Silldorf, we are always working to stay current on all of the new guidelines and changes in the law, and how they can be applied to help our clients at sentencing. Many of our federal clients have already received sentence reductions based on these new guidelines. We are also working with previous federal clients who were sentenced under the old rules to reduce their custody time based on these new retroactive amendments. Contact the Law Offices of David Silldorf today to learn more about the new federal sentencing guideline amendments and how we can help you fight your case in federal court!