Help could be on the way for an estimated 11,500 people who are currently serving federal sentences in the Bureau of Prisons.
Two recent changes to the U.S. Sentencing Guidelines – referred to collectively as Amendment 821 – could lead to significant sentence reductions. The Guidelines changes, generally speaking, apply to two groups: (1) people who received a criminal history enhancement because they were on parole or probation at the time of their federal offense, or (2) people who had zero criminal history points at the time they were sentenced in federal court.
These changes are to apply retroactively, meaning they would apply to anyone currently serving a federal sentence. However, the retroactivity does not take effect until February 1, 2024, according to the U.S. Sentencing Commission.
The first change under Amendment 821 addresses what are called “status points.” The guidelines add two criminal history points when the “defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.” In the past five years, about 37.5 percent of defendants received these extra criminal history points, which often led to longer guidelines ranges, which in turn often led to longer sentences. The points were most often imposed on people who had previously been convicted of a crime and who were on parole or probation at the time of the federal offense. In many cases these extra “status points” are now eliminated.
The second change under Amendment 821 applies to people who have no criminal history points, so-called “zero-point offenders.” Someone could be a zero-point offender either because they had never been in trouble before, or, if they had, their convictions were so old that they timed out and no longer counted as criminal history points. The change in the Guidelines allows for a two-point reduction in offense level for people in this category. This, in turn, could lead to a sentence reduction.
Of course, there are some caveats to this rule change. The defendant must meet a long list of criteria to be eligible. The requirements are that the defendant did not (1) receive any criminal history points; (2) receive a terrorism adjustment; (3) use violence or credible threats of violence; (4) possess a firearm or other dangerous weapon; (5) personally cause substantial financial hardship; (6) receive a hate crime, vulnerable victim, or serious human rights offense enhancement; (7) receive an aggravating role adjustment; or (8) engage in a continuing criminal enterprise. In addition, the instant offense cannot have resulted in death or serious bodily injury; was not a sex offense; and was not an offense involving individual rights (such as a deprivation of civil rights).
It is important to remember that both of these benefits from Amendment 821 are not guarantees of a sentence reduction. Each federal sentence is complex in its own way, and in almost every instance the Government will oppose a sentence reduction. The Court must still consider the case as a whole by evaluating the characteristics of the crime and the person seeking a sentence reduction. Thus, we advise that anyone seeking a sentence reduction under these changes obtain an experienced federal attorney who can effectively advocate for them.