U.S. Sentencing Commission Zero-Point Offender Amendment

What is it? How does it affect me?

Earlier this year, the U.S. Sentencing Commission proposed several changes to the federal sentencing guidelines. The three-part “2023 Criminal History Amendment” (also known as Amendment #821) centers on one’s criminal history and the proposed changes were the result of various factors, including new data and a changing legal landscape. Specifically, a closer look was given to the predictive value of criminal history “status points,” recidivism rates among zero-point offenders and lesser penalties associated with marijuana possession.

The Amendment in Brief

While this update focuses on the retroactive and future impact on zero-point offenders, a brief overview of all three refinements is warranted. The document read in part:

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.

Part B creates a new §4C1.1 guideline that provides a decrease of two 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).

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 Zero-Point Offender Impact

Having no congressional actions to modify or reject Amendment 821, the new sentencing provisions took effect November 1, 2023. This included the Commission’s decision to make Part A and subpart 1 of Part B retroactive. As a result, starting on this date, eligible incarcerated individuals can now ask the courts to reduce their sentences and if granted may be released from prison as early as February 1, 2024.

Who is eligible for such a reduction? As with any new law or change, there are guidelines for implementation, including offenses with no specific aggravating factors. To be clear, the Commission noted:

“In order to be eligible for a sentence reduction, an individual must be serving a term of imprisonment, the guideline range applicable to the individual must have been lowered as a result of Parts A or B of the 2023 Criminal History Amendment, and the individual must not already be scheduled to be released prior to February 1, 2024.” Specifically under subpart 1 of Part B, the individual must meet 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.

For those who do meet the criteria, a motion for a reduced sentence may be made by the defendant, the Director of the Bureau of Prisons or the court. Judges will consider a number of factors, including “the nature and circumstances of the offense, the characteristics of the individual, public safety, deterrence, and the sentencing guidelines.”

While all factors listed are important, key is public safety, so one’s record while in prison will be part of the decision-making process.

For those looking to pursue a reduction in sentence, there is no right to a hearing. Further, many of the motions may be resolved relying solely on written materials.

At Neff & Sedacca, P.C., we are committed to providing a strategically-sound, aggressive defense for our clients. If you have questions regarding these recent changes and eligibility for a reduced sentence based on the amendment, you should seek experienced legal counsel. To schedule a confidential consultation with the attorneys at Neff & Sedacca, P.C., contact the firm by phone at 215-563-9800 or email info@neffsedacca.com.

Source: https://www.ussc.gov/policymaking/materials-relating-2023-criminal-history-amendment