Proposed Amendments to the Sentencing Guidelines Published

On December 13, 2018, the United States Sentencing Commission published a "reader friendly" version of the proposed amendments to the federal sentencing guidelines. The public comment period for the proposed amendments will run through February 19, 2019. The reply period will officially close on March 15, 2019.

The proposed amendments include the following major categories of changes to the sentencing guidelines: 1) calculating retroactive sentence reductions in light of Koons v. United States and 2) determining whether a defendant’s prior conviction constitutes a “crime of violence” for purposes of enhanced sentencing.

Proposed Amendments to the Federal Sentencing Guidelines Based on Koons v. United States

What Happened in Koons v. United States?

In Koons v. United States, the defendant was convicted of a drug trafficking crime but did not receive the mandatory minimum sentence because of his substantial cooperation with the government investigation. This was before Congress amended the sentencing guidelines in 2014 and reduced the mandatory minimum for the defendant’s sentence to less time than the defendant had to serve. Congress applied this reduction retroactively.

The Supreme Court found that the defendant was not eligible for the sentence reduction, even though it applied retroactively, because his sentence was based on a reduction for his substantial cooperation with the government. Criminal justice advocates decried the nonsensical result of this ruling and have pushed for amendments to the sentencing guidelines to rectify this issue.

Applying Sentence Reductions Retroactively Under the Proposed Amendments

The proposed amendments deal with the aftermath of Koons v. United States by confirming that any mandatory minimum sentence reductions applied retroactively will trump any otherwise applicable guideline range. This means that a defendant who received a substantial assistance reduction in sentence that left him serving more time than if the amended sentencing range were applied to his case, the defendant will serve the reduced sentence. Importantly, the proposed amendments also note that the court should reduce a defendant’s new sentence from any amended guideline ranges by an amount in proportion to the reduction he received from his substantial assistance reduction. In other words, that defendant would possibly serve even less time than the retroactively applied mandatory range if he had previously received a substantial assistance reduction in sentence.

Proposed Amendments to the Federal Sentencing Guidelines Regarding the Determination of Whether a Prior Conviction is a Violent Crime

District courts are required to classify a defendant’s prior criminal convictions as either a “crime of violence” or “controlled substance offense” for purposes of determining whether an enhanced sentence must be imposed for the current offense. As it stands, the district courts assume a categorical approach to classifying an offense. This means that they turn to the enumerated elements of a statute to see if an offense fits the definition of a violent crime.

The proposed amendments would make the defendant’s actual conduct in the commission of the prior offense part of the focus of the court’s modified categorical approach in classifying a violent crime. The sentencing court would still factor in the actual elements of the crime in its analysis, but it would be able to look beyond the record of conviction and statutory elements to other sources from the judicial record. This would include the charging documents, the jury instructions, the jury’s factual findings, the substance of a plea agreement and any transcript in which the defendant confirms the factual findings for a guilty plea.

Along those same lines, the proposed amendments seek to clarify the varying definitions of inchoate offenses, such as attempt, conspiracy and solicitation, when analyzing whether to classify an attempt as a violent crime or part of a controlled substance offense. The proposed amendments provide three options for clarifying those definitions, including looking only to the underlying substantive offense to see if it would qualify as a crime of violence and then applying that definition to any inchoate convictions the defendant had for that offense.