The 2023 version of the United States Sentencing Guidelines took effect on November
1, 2023. Now that the Sentencing Commission has finally regained a voting quorum for
the first time since 2018, there are substantial changes to the newest version of the
Guidelines Manual. Some of the most notable changes include the retroactive
Amendment 821, which affects how criminal history points are calculated, and whether
a departure for “zero-point offenders” is applicable. The 2023 Guidelines also make
substantial changes to the eligibility requirements for seeking a reduction in sentence
commonly referred to as “compassionate release.” Amendment 821 and the
compassionate release amendments have garnered much attention recently, but the
Guidelines include other amendments that have not been the topic of much discussion.
Breaking Down the New Amendments in the 2023 Guidelines Manual
I. Amendment 821
In August 2023, the Sentencing Commission voted to make Parts A and B of
Amendment 821 retroactive. The Commission has estimated that retroactive application
of Amendment 821 will affect over 18,000 federal inmates. Defendants can seek
retroactive relief by filing a motion pursuant to 18 USC 3582(c)(2) if they meet the
qualifications for each amendment.
Part A – Status Point Offenders
Part A of Amendment 821 changes the way criminal history points are scored under the
former USSG 4A1.1. Prior to the amendment, a defendant received two criminal history
points “if the defendant committed the instant offense while under any criminal justice
sentence, including probation, parole, supervised release, imprisonment, work release,
or escape status.” USSG 4A1.1(d) (2021).
Part A of Amendment 821 alters the former 4A1.1(d) by adding new language to
4A1.1(e):
“Add 1 point if the defendant (1) receives 7 or more points under subsection (a) through
(d), and (2) committed the instant offense while under any criminal justice sentence,
including probation, parole, supervised release, imprisonment, work release, or escape
status.” Accordingly, defendants will no longer receive any points for being under a
criminal justice sentence unless they already have at least 7 criminal history points.
In terms of retroactivity, if a criminal defendant previously received 2 criminal history
points under the old 4A1.1(d), they may now be eligible for a 1-2 point reduction in their
criminal history score. A defendant with less than 7 points, not including the 2 points
under 4A1.1(d), would now receive zero points. If the defendant had 7 or more points,
they would still receive a 1-point reduction to their criminal history score.
How does a 1-to-2-point reduction in criminal history score lower a sentence?
Depending on the defendant’s criminal history score, a reduction could lower their
Criminal History Category and yield a lower guideline sentencing range. For example, a
defendant with 5 criminal history points is placed in Criminal History Category III. If the
defendant’s total offense level was 28, their guideline range would be 97-121 months
imprisonment. But if Part A applies and they receive 2-points off their criminal history
score, that would lower their Criminal History Category to II and the corresponding
range to 87 to 108 months.
Another example would be a defendant in Criminal History Category V with 10 criminal
history points. If they are eligible for Part A, they would receive a one-point reduction,
which would take them to Category IV. Using a total offense level of 28 again, this would
lower their guideline range from 130-162 months down to 110-137 months.
It should be noted that a reduction under Amendment 821 is not automatic. The
defendant, court, or government must first move for a reduction under 18 USC
3582(c)(2). And even if the defendant is eligible because application of the new
Amendment would lower their applicable guidelines range, the court still has broad
discretion in determining whether to grant a reduction and to what extent. In doing so,
the court is required to consider the sentencing factors listed under 18 USC 3553(a).
Additionally, some circumstances may make a defendant who received an
enhancement under 4A1.1(d) ineligible. Some examples would include: (1) a reduction
under Amendment 821 does not lower the Criminal History Category or Guideline
range; (2) the defendant was sentenced to the mandatory minimum (and the court is
bound to the minimum by statute); and (3) the defendant was sentenced below the
amended guideline range and it was not the result of a government motion under USSG
5K1.1, 18 USC 3553(e), or Rule 35(b) of the Federal Rules of Criminal Procedure.
Part B – Zero-Point Offenders
The second part of Amendment 821 only applies to federal defendants who receive no
criminal history points and meet all criteria set forth under the newly added USSG
4C1.1. If the defendant meets these qualifications, their offense level is decreased by
two. The criteria listed in this guidelines provision include:
(1) the defendant received no criminal history points;
(2) the defendant did not receive an enhancement for terrorism under 3A1.4;
(3) the defendant did not use violence or credible threats of violence in connection with
the offense;
(4) the offense did not result in death or serious bodily injury;
(5) the offense is not a sex offense;
(6) the defendant did not personally cause substantial financial hardship;
(7) the defendant did not possess, receive, purchase, transport, transfer, sell, etc. a
firearm or dangerous weapon in connection with the offense;
(8) the offense is not covered under 2H1.1 (Offenses Involving Individual Rights);
(9) the defendant did not receive an adjustment under 3A1.1 (Hate Crime Motivation or
Vulnerable Victim) or 3A1.5 (Serious Human Rights Offense); and
(10) the defendant did not receive an adjustment under 3B1.1 (Aggravating Role) and
was not engaged in continuing a criminal enterprise under 21 USC 848.
Given the long list of qualifications, and the short list of definitions and commentary
included in 4C1.1, retroactively seeking a reduction under Part B is a bit more
complicated than Part A. A few things to note are that some of the criteria will require
fact-finding by the sentencing court. Criteria involving conduct or acts committed “in
connection with the offense” would require a determination showing that a defendant’s
possession of a firearm, for example, was “in connection” with their offense. See
4C1.1(a)(3) and (a)(7).
Another example would be application of the criteria under subsection (a)(6), which
would require a finding as to whether the defendant personally caused substantial
financial hardship. The commentary notes that even if a defendant received an
enhancement under 2B1.1(b)(2), the court is required to determine subsection (a)(6)
independently from the 2B1.1 enhancement. USSG 4C1.1, cmt. app. n.1.
One other issue that has already caused quite a lot of confusion is the language under
subsection (b)(10). Arguably, to be found ineligible under (b)(10), the defendant would
have had to receive a leadership enhancement and have been found to be engaged in
CCE under 21 U.S.C. 848. However, that same language has used the Guidelines for
safety valve relief, and the Sixth and Seventh Circuits have found that having just one or
the other is disqualifying. United States v. Bazel, 80 F.3d 1140, 1143 (6th Cir. 1996);
United States v. Draheim, 958 F.3d 651, 660 (7th Cir. 2020). The Commission has
proposed an amendment to the 2024 Guidelines addressing this issue.
Part C – Simple Possession of Marijuana
Part C is not retroactive. This unfortunately means that federal defendants whose
sentences have become final cannot benefit from this part of the amendment. However,
it is does provide individuals whose sentences are not yet final to seek a downward
departure from the otherwise applicable sentencing guideline.
Part C revises the commentary to USSG 4A1.3 (Departures Based on Inadequacy of
Criminal History Category (Policy Statement)) which provides examples of when a
downward departure from the guidelines may be warranted. Under the new commentary
to 4A1.3, a downward departure should be considered if:
The defendant received criminal history points from a sentence for possession of
marihuana for personal use, without an intent to sell or distribute it to another person.
USSG 4A1.3, cmt. app. n.3(A)(ii).
II. Compassionate Release – Defining Extraordinary and Compelling Circumstances
When the First Step Act of 2018 was enacted into law, it made a substantial change to
18 USC 3582(c)(1)(A) that allowed federal prisoners to seek a reduction in sentence on
their own motion based on “extraordinary and compelling circumstances.” 18 USC
3582(c)(1)(A)(i).
Prior to the First Step Act, only the Bureau of Prisons could file a motion for
“compassionate release” under 3582(c)(1)(A). When the Act took effect, thousands of
federal inmates sought relief. The problem, however, was that 3582 required the district
court to consider whether a reduction was “consistent with applicable policy statements
issued by the Sentencing Commission[.]” But the Sentencing Commission had been
without a voting quorum since 2018, and it was thus unable to amend the applicable
policy statement to fit with the First Step Act.
This ultimately led many courts to find that there was no applicable policy statement,
and federal district courts were therefore free to determine what constitutes
“extraordinary and compelling” on their own. The Eleventh Circuit was the only circuit to
hold that the old language contained in USSG 1B1.13 was still binding on prisoner-filed
compassionate release motions. United States v. Bryant, 996 F.3d 1243 (11th Cir.
2021).
While the Eleventh Circuit was an outlier on the relevant policy statements applicable to
compassionate release, a significant split among the circuit courts arose as to whether a
non-retroactive change in law could be considered extraordinary and compelling. On
one side, the First, Fourth, Ninth, and Tenth Circuits had held that a non-retroactive
change in law could be considered where such change created a sentencing disparity
among defendants. Footnote 1. On the other side of the split were the Third, Fifth, Sixth,
Seventh, Eighth, and D.C. Circuits. Footnote 2.
In order to address these issues and splits among the circuits, the Sentencing
Commission amended USSG 1B1.13 and provided an expanded definition of
“extraordinary and compelling circumstances” that also includes, to a limited extent,
non-retroactive changes in law. Below is a summary of what circumstances a court may
now find constitute extraordinary and compelling for compassionate release purposes.
(1) Medical Circumstances of the Defendant: a defendant may seek compassionate
release based on a terminal illness; serious physical or medical condition; serious
functional or cognitive impairment; deteriorating physical or mental health related to
aging; a medical condition that requires long-term or specialized medical care; and
being at imminent risk medical complications caused by an infection of an ongoing
outbreak of infectious disease or ongoing public health emergency. USSG
1B1.13(b)(1)(A)–(D) (2023).
(2) Age of the Defendant: if the defendant is (a) at least 65 years old; (b) experiencing
deteriorating physical or mental health because of the aging process; and (c) has
served at least 10 years or 75 percent of their sentence, whichever is less
(3) Family Circumstances: a defendant can seek compassionate release if the
defendant’s minor child’s caregiver dies or is incapacitated, or the caregiver of a child
older than 18 who is incapable of self-care; the defendant’s spouse or registered partner
becomes incapacitated and the defendant is the only available caregiver; the
defendant’s parent becomes incapacitated and the defendant is the only available
caregiver for the parent; or similar circumstances involving an immediate family
member. USSG 1B1.13(b)(3)(A)–(D).
(4) Victim of Abuse: a defendant can now seek compassionate release when they were
a victim of abuse while in custody. The abuse may be sexual or physical, must have
been committed by or at the direction of a correctional officer, an employee or contractor of the Bureau of Prisons, or any other person who had custody and control over the defendant. The defendant must establish the misconduct either by providing evidence of a conviction in a criminal case, a finding of admission or liability in a civil case, or a finding in an administrative proceeding, unless the proceedings are unduly delayed and the defendant is in imminent danger.
(5) Other Reasons: this provides somewhat of a catch-all provision where the defendant
may present any other circumstances not listed above, or a combination of above
circumstances, that are similar in magnitude.
(6) Sentencing Disparity/Change in Law: A defendant who received has served at least
10 years of a term of imprisonment may seek a compassionate release based on a non-
retroactive change in law where such a change has produced a gross disparity between
the sentence being served and the sentence that would likely be imposed today.
III. Reduction for Acceptance of Responsibility
The vast majority of federal criminal defendants ultimately enter a guilty plea rather than proceeding to trial. One of the benefits of a guilty plea is the reduction in offense level under USSG 3E1.1 for acceptance of responsibility. The Guidelines have provided for a two-level reduction for clear demonstration of acceptance of responsibility. USSG
3E1.1(a). An additional one-point reduction has been available upon government motion
if the defendant timely enters a guilty plea thus allowing the government to avoid trial
preparation. USSG 3E1.1(b).
Over the years, there have been significant circuit and intra-district splits on the
applicability of 3E1.1(b). The Third, Fifth, and Sixth Circuits have upheld the denial of a
reduction under 3E1.1(b) where the defendant filed a motion to suppress. Footnote 3.
The First, Second, Ninth, Tenth, and D.C. Circuit have expressly held otherwise.
Footnote 4. Additionally, the First, Third, Seventh, and Eighth Circuits have all held that
the government may withhold moving for the one-point reduction under 3E1.1(b) based
on sentencing challenges, whereas the Second and Fifth Circuits have held to the
contrary. Footnote 5.
In an effort to resolve these conflicts, the Sentencing Commission has added additional
language to 3E1.1(b) in an effort to minimize the deterrent effect on a defendant’s ability
to exercise their constitutional rights. The following language has been added to the
Guidelines:
The term “preparing for trial” means substantive preparations taken to present the
government’s case against the defendant to a jury (or judge, in the case of a bench trial)
at trial. “Preparing for trial” is ordinarily indicated by actions taken close to trial, such as
preparing witnesses for trial, in limine motions, proposed voir dire questions and jury
instructions, and witness and exhibit lists. Preparations for pretrial proceedings (such as
litigation related to a charging document, discovery motions, and suppression motions)
ordinarily are not considered “preparing for trial” under this subsection. Post-conviction
matters (such as sentencing objections, appeal waivers, and related issues) are not
considered “preparing for trial.”
IV. Career Offender Enhancement and Inchoate Offenses
The Guidelines provide for an increased punishment for federal defendants who are
deemed “career offenders” under USSG 4B1.1. The career offender enhancement
applies where (1) the defendant is at least 18 years old at the time they committed the
instant offense, (2) the instant offense is a felony that is a “crime of violence” or
“controlled substance offense;” and (3) the defendant had at least two prior felony
convictions that are considered either a crime of violence or controlled substance
offense. USSG 4B1.1(a).
In previous versions of the Guidelines Manual, the definition of both a “controlled
substance offense” was:
[A]n offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance (or a counterfeit substance) or the possession of a
controlled substance (or a counterfeit substance) with intent to manufacture, import,
export, or dispense.
USSG 4B1.2(b) (2021). But the commentary to the above Guideline further defined both
a “crime of violence” and a “controlled substance offense” to include “the offenses of
aiding and abetting, conspiring, and attempting to commit such offenses.” USSG 4B1.2,
cmt. app. n.1. These types of offenses are known as inchoate offenses.
While the majority of circuits held that the commentary under 4B1.2 was binding,
meaning inchoate offenses qualify for career offender purposes, the Third, Fourth, Sixth,
Eleventh, and D.C. Circuit have held that the commentary is not binding and the
definition of a “controlled substance offense” does not include inchoate offenses.
Footnote 6. To address this conflict, the Commission amended 4B1.2 to move the
commentary’s inclusion of inchoate offenses into the actual text of the Guidelines.
Section 4B1.2 now includes a subsection (d) which specifically incorporates inchoate
offenses into the definition for both a crime of violence and controlled substance
offense. USSG 4B1.2(d) (2023).
The inclusion of inchoate offenses into the actual text of 4B1.2 effectively negates the
circuit courts’ opinions that prior felony convictions for inchoate crimes do not count for
career offender purposes for anyone sentenced under the 2023 Guidelines Manual. As
discussed below, a similar issue regarding the binding nature of the Guidelines’
commentary has arisen involving USSG 2B1.1 (actual loss vs. intended loss). While this
was not addressed in the 2023 Guidelines, it has been proposed for the 2024
amendment cycle.
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[1] United States v. Ruvalcaba, 26 F.4th 14 (1st Cir. 2022); United States v. McCoy, 981
F.3d 271 (4th Cir. 2020); United States v. Chen, 48 F.4th 1092 (9th Cir. 2022); United
States v. McGee, 992 F.3d 1035 (10th Cir. 2021).
[2] United States v. Andrews, 12 F.4th 255 (3d Cir. 2021); United States v. McMaryion,
64 F.4th 257 (5th Cir. 2023); United States v. McCall, 56 F.4th 1048 (6th Cir. 2022) (en
banc); United States v. King, 40 F.4th 594 (7th Cir. 2022); United States v. Crandall, 25
F.4th 582 (8th Cir. 2022); United States v. Jenkins, 50 F.4th 1185 (D.C. Cir. 2022).
[3] United States v. Longoria, 958 F.3d 372 (5th Cir. 2020); United States v. Collins, 683
F.3d 697 (2012); United States v. Drennon, 516 F.3d 160 (3d Cir. 2008).
[4] United States v. Vargas, 961 F.3d 566 (2d Cir. 2020); United States v. Price, 409 F.3d
436 (D.C. Cir. 2005); United States v. Marquez, 337 F.3d 1203 (10th Cir. 2003); United
States v. Marroquin, 136 F.3d 220 (1st Cir. 1998); United States v. Kimple, 27 F.3d 1409
(9th Cir. 1994).
[5] Compare United States v. Adair, 38 F.4th 341 (3d Cir. 2022), United States v. Jordan,
877 F.3d 391 (8th Cir. 2017), United States v. Sainz-Preciado, 566 F.3d 708 (7th Cir.
2009), and United States v. Beatty, 538 F.3d 8 (1st Cir. 2008), with United States v.
Castillo, 779 F.3d 318 (5th Cir. 2015), and United States v. Lee, 653 F.3d 170 (2d Cir.
2011).
[6] United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc); United States v.
Campbell, 22 F.4th 438 (4th Cir. 2022); United States v. Nasir, 17 F.4th 459 (3d Cir.
2021) (en banc); United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc); United
States v. Winstead, 890 F.3d 1082 (D.C. Cir. 2018).
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