The Sentencing Commission's December 2018 Proposals, and What Happened to Them

In December 2018, the U.S. Sentencing Commission proposed two changes that mattered to many federal prisoners: a fix for people shut out of drug sentence reductions by Koons v. United States, and a new way to decide whether a prior conviction is a "crime of violence." Neither was adopted as proposed, because the Commission soon lost the votes it needed to act.

Update (October 2026): The Commission did not adopt these proposals in 2019. In early 2019, the Sentencing Commission lost its quorum (the minimum number of voting members needed to act) and could not pass amendments until new commissioners were confirmed in August 2022. Later, effective November 1, 2023, the Commission moved the rule on attempts and conspiracies into the text of USSG §4B1.2 (Amendment 822). Check the current Guidelines Manual for the rules that apply today.

The December 2018 proposals

On December 13, 2018, the Commission published a "reader-friendly" version of proposed changes to the federal sentencing guidelines (news release). Public comments were due by February 19, 2019, and reply comments by March 15, 2019.

The two main proposals dealt with:

1. Sentence reductions after the Supreme Court's decision in Koons v. United States.
2. How courts decide whether a prior conviction is a "crime of violence."

The Koons proposal

What happened in Koons

In Koons v. United States (2018), the defendants were convicted of drug crimes that carried mandatory minimums. Because they helped the government, the judges sentenced them below the mandatory minimum.

In 2014, the Sentencing Commission lowered the guideline ranges for most drug crimes and made the change retroactive, meaning it could apply to people already in prison.

Proposed Amendments to the Sentencing Guidelines

The Supreme Court held the defendants could not get a reduction. Their sentences were "based on" the mandatory minimum and their cooperation, not on the guideline range that was later lowered. Criminal justice advocates criticized this as a nonsensical result that was unfair to people who had cooperated, and they pushed for guideline changes to fix it.

What the Commission proposed

The Commission offered several options in response. In general, they would have let courts reduce sentences for people like the Koons defendants. The idea was that a retroactive change to the guideline range would control, even though a mandatory minimum had applied before the person got credit for cooperating.

The proposal also said the court should cut the new sentence below the amended range in proportion to the reduction the person first got for helping the government. So a person who had cooperated could end up serving even less than the bottom of the amended range.

The crime of violence proposal

Some guidelines, like the career offender guideline, raise your sentence if you have prior convictions for a "crime of violence" or a "controlled substance offense."

To decide this, courts use the "categorical approach." The court looks only at the elements of the law you were convicted under (what the government had to prove), not at what you actually did.

The Commission proposed dropping the categorical approach for these definitions. Courts would instead look at the conduct behind the prior conviction, using court records such as charging papers, jury instructions, the jury's factual findings, plea agreements, and plea transcripts in which the person confirmed the facts. Courts would still consider the elements of the crime, but could look beyond them to these records.

The Commission also proposed three options to clarify when attempts, conspiracies, and solicitation (called "inchoate" offenses) count as crimes of violence or drug offenses. One option was to look only at whether the underlying completed crime qualifies, and then apply that answer to an attempt, conspiracy, or solicitation to commit it.

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