Federal Sentencing Guideline Changes on the Way

The U.S. Sentencing Commission is the government agency that writes the federal sentencing guidelines, which apply in each and every one of the about 80,000 cases sentenced in federal courts each year.

The federal guidelines, just like cars, need tune-ups.  Each year, the Commission announces changes -- known as "guideline amendments" -- that it plans to make to the sentencing guidelines.  The changes don't go into effect immediately.  First, the public gets to comment on the proposed amendments; then, Congress gets an opportunity to reject ones it doesn't like.  Assuming they're not rejected by Congress, the guideline amendments go into effect on November 1 of the year they're proposed.

Like clockwork, the Commission proposed guideline amendments earlier this year, and FAMM sent in comments on the proposed changes. On Friday, the Commission sent the amendments to Congress for its review. Here are FAMM's thoughts on the amendments:

Safety valve: On one hand, the Commission voted to expand the safety valve, a federal law that applies to drug trafficking crimes and provides a two-level reduction when a defendant meets a set of criteria. The Commission voted to extend the safety valve to cover offenses involving “precursor chemicals,” the building blocks of manufactured drugs. On the other hand, however, the Commission voted to not make amendment retroactive, citing the difficulty of revisiting the records in cases to determine if defendants meet the safety valve criteria.

Fraud cases: The Commission adopted language suggesting judges may go below the guidelines in fraud cases. But it appeared to limit the “departure” to cases where the loss, while large, has a limited impact because it is spread among a large number of individual victims. On the other hand, the Commission increased the guidelines in fraud cases, for insider trading, and certain other frauds. The Commissioners did point out that the current amendments in this economic crimes area are only the beginning of a multi-year review and the public can expect more in the years to come. We’ll be sure to once again encourage them to be bold about reducing sentences in this area.

Post-sentencing rehabilitation: Bowing to the current state of the law, as defined by the U.S. Supreme Court in Pepper v. United States, the Commission amended the guidelines to remove the bar it contains that prevents courts from considering post-sentencing rehabilitation when resentencing a defendant.

Read more about the amendments at our website. The text of the amendments themselves is a bit dense and complicated -- definitely turf for serious sentencing nerds -- but is available here.


Remember:  these amendments won't go into effect until November 1, 2012, and they are not retroactive -- they won't shorten sentences for anyone who's already been sentenced.