It’s That Time of Year Again! (Though Nothing May Happen This Time.)

February 7, 2017
By Hanging Out with Carl Gunn


  • A proposed guideline amendment will make avoiding prison easier, first by adding a 1- or 2-level decrease for true first offenders with no criminal record at all, and, second, by combining Zone B and Zone C in the sentencing table, so anyone with a guideline range of 12-18 months or less can serve their custody term in home detention or community confinement.
  • Other proposed amendments eliminate juvenile sentences and revocation sentences from consideration in calculating the criminal history score.
  • These amendments may not pass due to an absence of new sentencing commissioners, but you can use them and their underlying policy rationales to support variance arguments.



Yes, it’s that time of year again.  The Sentencing Commission just put out proposed amendments for comment, most of which are favorable.  The “reader friendly” version is linked here, but I thought I’d post about several criminal history amendments that are helpful.

The first amendment recognizes that Criminal History Category I combines true first offenders who have no criminal record at all with people who do have a criminal record but it’s just either very minor or very old.  The amendment would reduce the offense level for true first offenders with no record at all by either 1 level or 2 levels.  The reasons given by the Commission for the amendment are both empirical study – that “[r]ecidivism data analyzed by the Commission indicate that ‘first offenders’ generally pose the lowest risk of recidivism” – and a statutory directive in the original Sentencing Reform Act – the statement in 28 U.S.C. § 994(j) that alternatives to incarceration are generally appropriate for first offenders not convicted of a violent or otherwise serious offense.  (See the linked amendment publication at page 1.)

Part B of the same amendment then makes avoiding imprisonment generally easier.  It combines Zones B and C of the sentencing table.  This means defendants who formerly were in Zone C and could serve only half of their sentences in community confinement or home detention and had to serve the other half in prison can now serve the entire sentence in community confinement or home detention.  This means defendants with sentencing ranges as high as 12-18 months can serve their sentences completely in community confinement or home detention.  This amendment is also based on Commission empirical study, specifically, “the Commission’s continued study of approaches to encourage the use of alternatives to incarceration.”  (See the linked amendment publication at page 2.)

An additional proposed amendment addresses youthful offenders, specifically, defendants who sustained convictions when they were less than 18 years old.  The amendment would completely exclude juvenile convictions from consideration.  It also suggests a downward departure where a defendant was convicted of an adult offense when he was under 18 years old and the jurisdiction in which he was convicted categorically treats offenders below the age of 18 as “adults.”  I’m not sure how many jurisdictions have such laws, or whether there’s any at all in our circuit, but it will be something to check on when you have a client who sustained an “adult” conviction when he was less than 18 years old in a state whose laws you’re not familiar with.  There’s no specific policy rationale given for these amendments, but we could presumably look to more general case law and commentary on why juveniles are treated differently in the criminal justice system, the lesser procedural protections in juvenile court, and the underlying in loco parentis rationale of the juvenile court system.

Finally, another amendment would completely preclude consideration of revocation sentences, both in calculating sentence length and in determining whether the sentence comes within the criminal history time limits.  Again, there’s no specific policy rationale given, but keep in mind those cases we often see in California where a defendant commits a new offense and they give him a concurrent prison sentence for the revocation just to get him “off paper” and because it’s not going add any real time to his sentence.

I mention the policy rationales and possible policy rationales because you may need to argue these proposed amendments as a ground for variance, in which case you should point to not just the pending amendment but also the Commission’s underlying policy reasoning and/or empirical study.  See Kimbrough v. United States, 552 U.S. 85, 108-09 (2007) (recognizing Commission’s “capacity . . . to ‘base its determinations on empirical data and national experience, guided by a professional staff with appropriate expertise’” (quoting United States v. Pruitt, 502 F.3d 1154, 1171 (10th Cir. 2007) (McConnell, J., concurring)).   You may need to argue the amendments as variance rationales for two reasons.  First, the amendments won’t take effect until November 1, if at all, and you might not be able to or want to delay your sentencing until then.  Second, people who know the situation inside the Beltway have told me there’s at present only two Commissioners and there’s a good chance Congress won’t approve additional ones until it’s too late to approve the amendments this year.  If that happens, you’ll need to argue a variance theory.  And you should also argue that a failure on the Commission’s part to actually adopt the amendments isn’t meaningful if a reason it didn’t adopt them was that there weren’t enough Commissioners.