Amendments to the U.S. Sentencing Guidelines

Our Louisiana-based team at Capitelli & Wicker has over three decades of experience fighting for our clients in a variety of practice areas. Over the years, we have made it our business to keep up with any changes to federal, state, or local laws and guidelines.

This year, the United States Sentencing Commission adopted several amendments to their sentencing guidelines, a document used all over the country to determine sentencing for people convicted of crimes. These amendments are the first of their kind in 5 years.

In this blog, we give an overview of the recently adopted amendments, and discuss what these changes mean for a potential New Orleans criminal defense case, as well as a white collar defense case, in particular.

Established by the United States Sentencing Commission, an independent bipartisan agency in the judicial branch of government, the U.S. sentencing guidelines establish a national precedent for sentencing throughout the entire country.

Even district courts, which are not bound to apply the guidelines, “must consult these guidelines and take them into account when sentencing.”

According to the U.S. Sentencing Commission, the guidelines account for both the seriousness of the offense and the offender’s criminal history. The guidelines provide 43 levels of offense seriousness and six criminal history categories to help courts throughout the country consider and apply these guidelines in sentencing.

The Sentencing Commission was created in 1984, and the first iteration of sentencing guidelines were established soon after in 1987. They have since been amended many times, but the amendments adopted in 2023 are the first changes in five years.

These amendments influence four areas:

The new guidelines will primarily influence criminal history calculations in two ways:

1. Qualifying defendants with no criminal history will receive a reduction in offense level.
2. There will no longer be a “status” enhancement for defendants below a certain number of history points.

As mentioned above, the federal sentencing guidelines provide six categories for criminal history calculation. They also provide guidance for how to assign someone who is convicted to one of these categories.

One of the new amendments allows a two-level reduction for someone with zero criminal history, granted they meet a few other conditions.

Additionally, the guidelines previously allowed a two-point increase to someone’s criminal history score if any part of the crime was committed while under a criminal justice sentence.

Under the new amendments, this two-point increase is traded in favor of a one-point increase. The one-point increase is now also limited to defendants with seven or more criminal history points.

In the past, guidelines allowed judges to consider acquitted crimes in a sentence. This practice was often criticized, but because it was not explicitly addressed in the guidelines, many courts were able to uphold the consideration of acquitted conduct in sentencing.

Under a new amendment, acquitted conduct will no longer be considered for purposes of determining the guideline range, save special circumstances.

The amendments revise two subsections of the sentencing guidelines. In short, the amendments replace the term “similar offense” with specific offenses in provisions about drug offenses. That way, courts have actual guidelines and precedent to apply in sentencing.

Additionally, under the amended guidelines, sentencing courts are encouraged not to use prior conviction for marijuana possession as a criminal history point. This step helps lower consequences for what many consider a “less serious” drug.

The amendments will also expand “safety valve eligibility,” which provides ways to avoid federal mandatory minimums for drug offenses.

The First Step Act was signed into law in 2018 as a bipartisan effort to improve criminal justice outcomes, reduce the number of federal prisoners, and create mechanisms to maintain public safety.

It provided systems and required programs to help reduce recidivism risk, including compassionate release, which is early release for “extraordinary and compelling circumstances.”

The 2023 amendments have further outlined the “extraordinary and compelling” reasons for early release.

These include, but are not limited to:

• Defendant is at least 65 years old and has served 10 years or 75% of their term.
• Defendant is suffering from a terminal illness.
• Defendant has serious mental or physical health conditions or deterioration due to aging, diminishing their ability to self-care…And more

These changes to the federal sentencing guidelines potentially reduce sentences for individuals convicted of white-collar crimes, particularly those with limited or no prior criminal history. The introduction of “zero-point offenders” to the criminal history calculation allows individuals with no or minor convictions to receive a more lenient sentence.

Additionally, the amendment that limits the consideration of acquitted conduct can work in favor of white-collar defendants, and the changes to the First Step Act could offer white-collar defendants more opportunities for sentence reductions.

While not directly related to white-collar crimes, the revisions to drug offense guidelines could indirectly impact some white-collar cases where drug-related charges are involved, such as cases involving health care fraud or pharmaceutical crimes.

The amendments, therefore, may provide white collar criminal defense attorneys with additional tools to argue for reduced sentences on behalf of our clients. However, the exact impact will vary depending on the individual case, the severity of the white-collar crime, and the defendant’s circumstances.

The recent proposed amendments to the U.S. sentencing guidelines will influence countless cases throughout the nation, and our team at Capitelli & Wicker is here to help. Contact us today to learn more about the amendments to the U.S. sentencing guidelines and how they might affect your case.