The Criminal Defense Blog


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Key Points:

  1. Amendment 821: The Commission, by majority vote, has permitted the delayed retroactive application of Amendment 821 pertaining to criminal history. This could make certain incarcerated individuals eligible for reduced sentences, effective from February 1, 2024.

  2. Aims of the Amendment: The recently approved Amendment 821 introduces targeted, evidence-based modifications to some criminal history rules. Certain portions of the amendment decrease the sentencing range for future defendants. Consequently, there's a legal mandate to contemplate if these reductions can be extended to those previously sentenced.

  3. Delay in Implementation: The Commission has decided to delay the actual order of reduced sentences. This is to ensure that eligible individuals can partake in reentry programs and transitional services, enhancing their chances of successful reintegration into society.

  4. Remarks by U.S. District Judge Carlton W. Reeves: As Chair of the Commission, Judge Reeves highlighted that this decision could bring hope to thousands of incarcerated people and their families. He also emphasized the importance of reentry programs and transitional services in ensuring the public's safety.

  5. Projected Impact: An Impact Analysis in July 2023 estimated significant benefits for the incarcerated due to the amendment:

    • 11,495 will potentially have a 11.7% reduction in their sentences under Part A related to “Status Points”.
    • 7,272 individuals, or “Zero-Point Offenders”, could see a sentence reduction of 17.6% on average under Part B.
  6. Congress Review: This year's guideline amendments are currently with Congress for a 180-day review period, ending on November 1, 2023. If not disapproved, courts can begin to consider sentence reduction petitions, with reductions in prison terms potentially starting from February 1, 2024.

  7. Future Policy Priorities: On the 40th anniversary of the Sentencing Reform Act (SRA), the Commission plans to undertake projects to assess the effectiveness of current sentencing practices. This includes evaluating the Bureau of Prisons' practices, looking into court-sponsored programs, and addressing the treatment of acquitted conduct in the sentencing guidelines.

  8. Additional Areas of Focus: The Commission intends to further delve into career offender guidelines, explore alternative approaches to the “categorical approach”, and research issues like methamphetamine offenses and sentencing discrepancies between trials and pleas.

  9. Public Engagement: The Commission has expressed gratitude for the public's feedback on its tentative policy priorities and invites continuous involvement throughout the year.

  10. For More Information: Details about the amendment process and the approved changes can be found at

This recent move signifies a potential turning point in U.S. sentencing guidelines, emphasizing a more evidence-based and rehabilitative approach to criminal justice.

Reason for Amendment: The amendment is based on various Commission studies on federal offenders' criminal history. It aims to:

  1. Reduce the impact of extra criminal history points for offenders who committed a crime while already under a criminal justice sentence ("status points").
  2. Reduce recommended guideline ranges for offenders with no criminal history points ("zero-point offenders").
  3. Update policies related to simple possession of marijuana offenses.

The amendment balances data-driven sentencing with the duty to create penalties that align with the statutory purposes of sentencing.

Part A – Status Points:

  1. Re-designation of subsections for clarity.
  2. Previously, offenders who committed an offense while under any criminal justice sentence received two criminal history "status points". This amendment limits and reduces the impact of "status points":
    • Only offenders with seven or more criminal history points (excluding status points) will receive status points.
    • The number of status points awarded is reduced from two to one.
  3. Commentary and related sections have been modified accordingly.
  4. Commission studies found:
    • 37.5% of cases with criminal history points over the past five years included status points.
    • 61.5% of these offenders had a higher Criminal History Category due to these points.
    • The likelihood of recidivism strongly correlates with an offender’s criminal history, but status points have a minimal contribution to this predictive value.
  5. The Commission’s adjustment to the role of "status points" is based on recent research, showing that these points don't significantly predict recidivism as initially thought.
  6. However, "status points" are retained for offenders with higher criminal histories, recognizing the offender’s overall criminal history and the fact that they committed an offense while under another criminal sentence.

Part B – Zero-Point Offenders:

  1. This part focuses on offenders with zero criminal history points.
  2. Three main changes:
    • An adjustment is provided for certain zero-point offenders.
    • Revision of policies to align with a congressional directive.
    • Other necessary conforming changes.

This amendment proposes targeted changes that reflect a more nuanced understanding of criminal history and its relation to recidivism. It attempts to ensure fairness while still considering public safety.

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