[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Notices]
[Pages 60534-60536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18977]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for the United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of final action regarding retroactive application of
Parts A and B, Subpart 1 of Amendment 821 (Amendment 8 of the
amendments submitted to Congress on April 27, 2023), pertaining to
criminal history.
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SUMMARY: The Sentencing Commission hereby gives notice of an amendment
to the policy statement and commentary in the Guidelines Manual that
provides for a reduction in a defendant's term of imprisonment as a
result of an amended guideline range. The amendment includes Parts A
and B, Subpart 1 of Amendment 821 (Amendment 8 of the amendments
submitted to Congress on April 27, 2023) in the policy statement as an
amendment that may be available for retroactive application. The
amendment also provides a special instruction requiring that any order
granting sentence reductions based on Part A or Part B, Subpart 1 of
Amendment 821 shall not take effect until February 1, 2024, or later.
DATES: The effective date of this amendment is November 1, 2023.
However, as a result of the special instruction, any order reducing a
defendant's term of imprisonment based on the retroactive application
of Part A or Part B, Subpart 1 of Amendment 821 cannot take effect
until February 1, 2024, or later.
FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs
Specialist, (202) 502-4597.
SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is
an independent agency in the judicial branch of the United States
Government. The Commission promulgates sentencing guidelines and policy
statements for federal courts pursuant to 28 U.S.C. 994(a). The
Commission also periodically reviews and revises previously promulgated
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline
amendments to the Congress not later than the first day
[[Page 60535]]
of May each year pursuant to 28 U.S.C. 994(p). Absent action of the
Congress to the contrary, submitted amendments become effective by
operation of law on the date specified by the Commission (generally
November 1 of the year in which the amendments are submitted to
Congress).
Section 3582(c)(2) of title 18, United States Code, provides that
``in the case of a defendant who has been sentenced to a term of
imprisonment based on a sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon
motion of the defendant or the Director of the Bureau of Prisons, or on
its own motion, the court may reduce the term of imprisonment, after
considering the factors set forth in section 3553(a) to the extent that
they are applicable, if such a reduction is consistent with applicable
policy statements issued by the Sentencing Commission.'' Pursuant to 28
U.S.C. 994(u), ``[i]f the Commission reduces the term of imprisonment
recommended in the guidelines applicable to a particular offense or
category of offenses, it shall specify in what circumstances and by
what amount the sentences of prisoners serving terms of imprisonment
for the offense may be reduced.'' The Commission lists in Sec. 1B1.10
(Reduction in Term of Imprisonment as a Result of Amended Guideline
Range (Policy Statement)) the specific guideline amendments that the
court may apply retroactively under 18 U.S.C. 3582(c)(2).
On April 27, 2023, the Commission submitted to the Congress
amendments to the sentencing guidelines, policy statements, official
commentary, and Statutory Index, which become effective on November 1,
2023, unless Congress acts to the contrary. See 88 FR 28254 (May 3,
2023). Parts A and B, Subpart 1 of Amendment 821 (Amendment 8 of the
amendments submitted to Congress on April 27, 2023), pertaining to
criminal history, have the effect of lowering guideline ranges for
certain defendants. The Commission has now promulgated an amendment to
include Parts A and B, Subpart 1 of Amendment 821 in the listing in
Sec. 1B1.10(d) as an amendment that may be available for retroactive
application. The amendment also provides a special instruction
requiring that any order granting sentence reductions based on Part A
or Part B, Subpart 1 of Amendment 821 shall not take effect until
February 1, 2024, or later, and includes commentary explaining and
clarifying this special instruction.
The amendment to Sec. 1B1.10 set forth in this notice and the text
of the amendments submitted to Congress on April 27, 2023 (published in
88 FR 28254 (May 3, 2023)) are also available on the Commission's
website at www.ussc.gov.
Authority: 28 U.S.C. 994(a), (o), (u); USSC Rules of Practice and
Procedure 2.2, 4.1, 4.1A.
Carlton W. Reeves,
Chair.
1. Amendment: Section 1B1.10 is amended--
in subsection (d) by striking ``and 782 (subject to subsection
(e)(1))'' and inserting ``782 (subject to subsection (e)(1)), and 821
(parts A and B, subpart 1 only and subject to subsection (e)(2))'';
and in subsection (e)--
in the heading, by striking ``Instruction'' and inserting
``Instructions'';
and by adding at the end the following new paragraph (2):
``(2) The court shall not order a reduced term of imprisonment
based on Part A or Part B, Subpart 1 of Amendment 821 unless the
effective date of the court's order is February 1, 2024, or later.''.
The Commentary to Sec. 1B1.10 captioned ``Application Notes'' is
amended--
by redesignating Notes 7 and 8 as Notes 8 and 9, respectively;
and by inserting after Note 6 the following new Note 7:
``7. Application to Amendment 821 (Parts A and B, Subpart 1
Only).--As specified in subsection (d), the parts of Amendment 821 that
are covered by this policy statement are Parts A and B, Subpart 1 only,
subject to the special instruction at subsection (e)(2). Part A amended
Sec. 4A1.1 (Criminal History Category) to limit the overall criminal
history impact of ``status points'' (i.e., the additional criminal
history points given to defendants for the fact of having committed the
instant offense while under a criminal justice sentence, including
probation, parole, supervised release, imprisonment, work release, or
escape status). Part B, Subpart 1 created a new Chapter Four guideline
at Sec. 4C1.1 (Adjustment for Certain Zero-Point Offenders) to provide
a decrease of two levels from the offense level determined under
Chapters Two and Three for defendants who did not receive any criminal
history points under Chapter Four, Part A and whose instant offense did
not involve specified aggravating factors.
The special instruction at subsection (e)(2) delays the effective
date of orders reducing a defendant's term of imprisonment to a date no
earlier than February 1, 2024. A reduction based on the retroactive
application of Part A or Part B, Subpart 1 of Amendment 821 that does
not comply with the requirement that the order take effect no earlier
than February 1, 2024, is not consistent with this policy statement and
therefore is not authorized under 18 U.S.C. 3582(c)(2). Subsection
(e)(2), however, does not preclude the court from conducting sentence
reduction proceedings and entering orders under 18 U.S.C. 3582(c)(2)
and this policy statement before February 1, 2024, provided that any
order reducing the defendant's term of imprisonment has an effective
date of February 1, 2024, or later.''.
Reason for Amendment: The Commission has determined that the
targeted changes to the criminal history rules made in Parts A and B,
Subpart 1 of Amendment 821 should be applied retroactively.
Accordingly, this amendment expands the listing in subsection (d) of
Sec. 1B1.10 (Reduction in Term of Imprisonment as a Result of Amended
Guideline Range (Policy Statement)) to implement the directive in 28
U.S.C. 994(u) with respect to guideline amendments that may be
considered for retroactive application.
Part A of Amendment 821 limits the overall criminal history impact
of ``status points'' (i.e., the additional criminal history points
given to defendants for the fact of having committed the instant
offense while under a criminal justice sentence, including probation,
parole, supervised release, imprisonment, work release, or escape
status) under Sec. 4A1.1 (Criminal History Category). Part B, Subpart
1 of Amendment 821 creates a new Chapter Four guideline at Sec. 4C1.1
(Adjustment for Certain Zero-Point Offenders) providing a decrease of
two levels from the offense level determined under Chapters Two and
Three for defendants who did not receive any criminal history points
under Chapter Four, Part A and whose instant offense did not involve
specified aggravating factors.
In making this determination, the Commission considered the
following factors, among others: (1) the purpose of the amendment; (2)
the magnitude of the change in the guideline range made by the
amendment; and (3) the difficulty of applying the amendment
retroactively. See Sec. 1B1.10, comment. (backg'd.). Applying those
standards to Amendment 821, the Commission determined that, among other
factors:
(1) The purpose of these targeted amendments is to balance the
Commission's mission of implementing data-driven sentencing policies
with its duty to craft penalties that reflect the statutory purposes of
sentencing and to reflect ``advancement in knowledge of
[[Page 60536]]
human behavior as it relates to the criminal justice process.'' See 28
U.S.C. 991(b). The Commission determined that the policy reasons
underlying the prospective application of the amendment apply with
equal force to individuals who are already sentenced.
In relation to Part A, the Commission determined that accounting
for status on a more limited basis continues to serve the broader
purposes of sentencing while also addressing other concerns raised
regarding the impact of status points. The Commission also determined
that the changes made by Part A reflect updated research suggesting
that status points' ability to predict future recidivism--a core
justification for their use--may be less than the original Commission
may have expected.
In implementing Part B, Subpart 1, the Commission sought, in part,
to fulfill one of its core congressional directives to ensure that
``the guidelines reflect the general appropriateness of imposing a
sentence other than imprisonment in cases in which the defendant is a
first offender who has not been convicted of a crime of violence or an
otherwise serious offense.'' See 28 U.S.C. 994(j). The Commission
further determined that the changes made by Part B, Subpart 1 reflect
its statutory mission to provide for penalties that are ``sufficient,
but not greater than necessary'' by recognizing that individuals with
zero criminal history points have considerably lower recidivism rates
than other sentenced individuals, as well as the fact that courts
generally depart and vary more often in cases involving individuals
with zero criminal history points as compared with other individuals.
(2) The Commission determined that the changes in Parts A and B,
Subpart 1 of Amendment 821 would meaningfully impact the sentence of
many currently incarcerated individuals. The Commission estimates that
11,495 currently incarcerated individuals would have a lower guideline
range as the result of retroactive application of Part B, Subpart 1 of
Amendment 821, with an average sentence reduction of 14 months (or
11.7%). The Commission further estimates that 7,272 currently
incarcerated individuals would have a lower guideline range as the
result of retroactive application of Part A of Amendment 821, with an
average sentence reduction of 15 months (or 17.6%).
(3) The Commission determined that applying Part A of Amendment 821
retroactively, requiring the recalculation of criminal history points
and making the determination as to whether the individual would fall
within a lower criminal history category, presents minimal difficulty.
While recognizing that consideration of the exclusionary criteria in
Part B, Subpart 1 of Amendment 821 could result in an increased
administrative burden, the Commission concluded that any such burden is
manageable.
The Commission concludes that consideration of these factors
supports a policy determination that a reduced guideline range is
sufficient to achieve the purposes of sentencing and that, in the sound
discretion of the court, a reduction in the term of imprisonment may be
appropriate for previously sentenced, qualified defendants. In making
this determination, the Commission remains cognizant of the fact that
public safety will be considered in every case because Sec. 1B1.10
requires the court, in determining whether and to what extent a
reduction in the term of imprisonment is warranted, to consider the
nature and seriousness of the danger to any person or the community
that may be posed by such a reduction. See Sec. 1B1.10, comment.
(n.1(B)(ii)).
At the same time, the Commission also determined that the agencies
of the federal criminal justice system responsible for reentry into
society need time to prepare, and to help the released individuals
prepare, for that reentry. The Commission concluded that a three-month
delay in the effective date of any orders granting sentence reductions
under Amendment 821 is needed (1) to give courts adequate time to
obtain and review the information necessary to make an individualized
determination in each case of whether a sentence reduction is
appropriate, (2) to ensure that, to the extent practicable, all
individuals who are to be released have the opportunity to participate
in reentry programs and transitional services, such as placement in
halfway houses, while still in the custody of the Bureau of Prisons,
which increases their likelihood of successful reentry to society and
thereby promotes public safety, and (3) to permit those agencies that
will be responsible for individuals after their release to prepare for
the increased responsibility.
Therefore, the Commission added a Special Instruction at subsection
(e) providing that a reduced term of imprisonment based on retroactive
application of Amendment 821 shall not be ordered unless the effective
date of the court's order is February 1, 2024, or later. An application
note clarifies that this special instruction does not preclude the
court from conducting sentence reduction proceedings before February 1,
2024, as long as any order reducing the term of imprisonment has an
effective date of February 1, 2024, or later.
[FR Doc. 2023-18977 Filed 8-31-23; 8:45 am]
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