Federal Sentencing Guidelines Amendment Hearing

The U.S. Sentencing Commission is back to work with the Senate’s confirmation of two additional Sentencing Commissioners. The Commission has scheduled a hearing on April 18, 2017, to discuss amendments to the federal sentencing guidelines for 2017. Some of the proposed amendments include:

1. An amendment that would provide a lower base offense level for first-time offenders. In this regard, the Commission is considering two options:

Option 1 provides a decrease of 1 level from the offense level determined under Chapters Two and Three. Option 2 provides a decrease of 2 levels if the final offense level determined under Chapters Two and Three is less than level 16, or a decrease of 1 level if the offense level determined under Chapters Two and Three is level 16 or greater.

2. An amendment would no longer impose criminal history points for juvenile convictions. Convictions that occurred before age 18 would continue to count if the defendant was treated as an “adult” at the time of conviction.

3. A separate amendment would remove criminal history points for sentences tied to revocation of “probation, parole, supervised release, special parole, or mandatory release.”

4. Another amendment would remove the language from the acceptance of responsibility guideline that made it possible to lose acceptance making losing objections to relevant conduct at sentencing. Under the current guideline, acceptance can be denied if “a defendant who falsely denies, or frivolously contests, relevant conduct that the court determines to be true has acted in a manner inconsistent with acceptance of responsibility.” Under the amended guideline, “a defendant who makes a nonfrivolous challenge to relevant conduct is not precluded from” receiving acceptance of responsibility points.

There is no discussion in the proposed amendments about retroactivity. We will know more about retroactivity when the commission votes. If the Commission declines to make an amendment retroactive, individuals who have already been sentenced cannot benefit from the change in law (unless the amendment is a “clarifying” amendment, which none of these amendments are). The Commission considers amendments to the federal sentencing guidelines at least once a year.