Referred to as “Amendment 821” or the “2023 Criminal History Amendments,” the United States Sentencing Commission recently adopted amendments to the Federal Sentencing Guidelines for the first time in five (5) years. The changes are effective November 1, 2023.
The Sentencing Commission also voted to allow for delayed retroactivity for Parts A and B, with the effective date no earlier than February 1, 2024. The delay will provide parties with the time necessary to review petitions and prepare for reentry.
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.
The amendment’s change to status points was based on largely on two observations by the Sentencing Commission. First, during the last five years, status points were applied in 38%
of cases—moving 62% of such offenders into a higher criminal history category. During the same period, Commission data demonstrates that status points minimally improve
the criminal history score’s successful prediction of rearrest—by just 0.2%.
Part B of the amendment 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 also revises §5 C1.1 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).
In order to qualify for the two-level reduction, defendants must not have:
- Any prior criminal history points;
- Received a terrorism adjustment under § 3A1.4;
- Used violence or credible threats of violence in connection with the offense;
- Caused death or serious bodily injury because of the offense;
- Committed a sex offense;
- Personally caused substantial financial hardship;
- Possessed, received, purchased, transported, transferred, sold, or disposed of a firearm or other dangerous weapon (or induced another person to) in connection with the offense;
- Committed a civil rights offense covered under § 2H1.1 (Offenses Involving Individual Rights);
- Committed a hate crime;
- Received an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim), § 3A1.5 (Serious Human Rights Offense), or § 3B1.1 (Aggravating Role); or
- Engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
If any of the above applies to a defendant, the defendant is ineligible for the adjustment. Depending on their circumstances, many white-collar defendants may qualify.
REVISIONS TO § 5C1.1 COMMENTARY
In addition to the two-level adjustment provided by § 4C1.1, revisions to the § 5C1.1 Commentary advise courts to consider sentences without prison time for defendants who receive the adjustment.
The new Commentary for § 5C1.1 contains a presumption against imprisonment for defendants who both receive a Zero-Point Offender Adjustment and have an applicable guideline range within Zones A or B. The Commentary advises that for these defendants, “a sentence other than a sentence of imprisonment . . . is generally appropriate.” Further, the proposed Commentary advises courts to consider a sentence with no prison time even for defendants whose guideline range falls outside of Zone A or B, if the defendant received the Zero-Point Offender Adjustment and the “applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.”
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.
Prompting this action by the Sentencing Commission, the Commission’s data revealed that marijuana possession priors increased the criminal history score for 8% of all federal offenders sentenced in 2021—moving 40% of such offenders into a higher a criminal history category. Most marijuana possession priors were for state court convictions resulting in less than 60 days in prison.
The amendment responds to shifting trends in many states regarding the treatment of
simple possession of marijuana and the continued impact of such prior convictions on a federal
The Commission found that in 2021, 97% of federal offenders’ marijuana possession priors were for state convictions—some from states that have changed their laws to decriminalize, legalize, expunge or seal records for marijuana. Marijuana possession priors from these states resulted in higher criminal history calculations under the federal sentencing guidelines for 695 offenders.
AN analysis by the Sentencing Commission estimates that 11,495 incarcerated individuals will have a lower sentencing range under Part A and a possible average sentence reduction of 11.7%, and that 7,272 incarcerated individuals will have a lower sentencing range under Part B and a possible average sentence reduction of 17.6%.
 U.S.S.G. Amendments in Brief, pg. 4