Love May or May Not Be in the Air, But the New Sentencing Guideline Amendments Are

May 8, 2012
By Hanging Out with Carl Gunn

It’s that time of year. And, no, I’m not talking about it being spring and love being in the air. (Though hopefully it is for some of you.) It’s the time of year when the Sentencing Commission issues the final version of the guideline amendments which will take effect in November unless Congress vetoes them (which almost never happens). This brings to mind a little practice tip an attorney with pending federal sentencings should keep in mind this time of year, namely, the rules on which version of the guidelines apply – the old ones or the new ones. So I thought I’d offer a little reminder about that and put off my previously planned post until next week.

There are two pertinent rules to remember. The first is thestatutory provision about what guidelines apply. That’s in 18 U.S.C. 3553(a)(4), which directs the court to consider not the guidelines in effect on the date the defendant committed the offense but the guidelines “in effect on the date of sentencing.” There’s then a second rule, however – to be found in case law considering the impact of the Ex Post Facto Clause on this provision. That case law holds that the court can’t apply the guidelines in effect on the date of sentencing but has to apply the guidelines in effect on the date of the offense if the new guidelines disadvantage the defendant compared to the guidelines in effect on the date he committed his offense. See, e.g., United States v. Espinoza-Morales, 621 F.3d 1141, 1146 (9th Cir. 2010); United States v. Lopez-Soliz, 447 F.3d 1201, 1204-1205 (9th Cir. 2006); United States v. Alfaro, 336 F.3d 876, 882-83 (9th Cir. 2003); Hamilton v. United States, 67 F.3d 761, 765 (9th Cir. 1995); United States v. Johns, 5 F.3d 1267, 1272 (9th Cir. 1993); United States v.Warren, 980 F.2d 1300, 1304 (9th Cir. 1992).

This suggests attorneys should think about trying to get sentencing dates after November 1 (or continue sentencing dates already set) if there’s a guideline amendment taking effect that might just possibly help their clients. If it turns out a new guideline does help, it will apply regardless of when the defendant committed his offense, entered his plea, or got convicted in trial. And there’s no harm done if it turns out the amendment doesn’t help and/or some bad amendment hurts, because the ex post facto protection means the defendant can always ask for the guidelines in effect on the date of the offense if the new guidelines are worse. (But note that you don’t get to pick and choose; it’s all old or all new. See Warren, 980 F.2d at 1205.)

The one circumstance where it might be inadvisable to wait would be where the date of the offense was far enough back that there’s three sets of guidelines to consider – the ones in effect on the date of the offense, the ones in effect now, and the ones that will take effect in November. The ex post facto protection only gets you the ones in effect all the way back on the date of the offense, so delaying sentencing would be a bad idea if the guidelines in effect now are better than both the ones in effect on the date of the offense and new ones that will take effect in November. That won’t happen too often, but it could happen occasionally, so you should calculate the sentencing possibilities under three sets of guidelines: (1) the ones in effect on the date of the offense; (2) the ones in effect now; and (3) the ones that will take effect in November. If it’s the second ones that are best, you won’t want to delay sentencing until after November.

There’s not a lot of new helpful guidelines amendments to consider this year, but there are a few. (To view them in reader friendly form, go to the Sentencing Commission’s website and click on “Reader-Friendly Version of Final 2012 Amendments.”) One amendment that could possibly be helpful in a small number of cases is an amendment that’s part of the Commission’s Amendment No. 1. That amendment creates a rebuttable presumption in mortgage fraud cases that the value of collateral still held by the victim that offsets the loss under application note 3(E)(ii) to section 2B1.1 is the most recent tax assessment. This may or may not help, but delaying sentencing until November gives you the option of using this application note if it does help, and you can argue ex post facto limitations if it turns out to hurt.

An amendment that’s more clearly helpful is the Commission’s Amendment No. 3, which extends the 2-level offense level decrease for “safety valve” drug defendants in section 2D1.1(b) to precursor chemical cases (the most common probably being pseudoephedrine) under section 2D1.11. If you have a pseudoephedrine or other precursor chemical case and a defendant who’s a “safety valve” defendant, you should definitely try to get sentencing pushed off to November.

Finally, there’s a helpful amendment (the Commission’s Amendment No. 4) to the guideline in section 2L1.2 for illegal reentry after deportation. It takes the good side of a circuit split on the question of whether sentence length for a drug conviction includes time for a revocation of probation. This sentence length matters in deciding whether a defendant with a prior drug conviction gets a 16-level offense level increase under 2L1.2(b)(1)(A) or just a 12-level increase under 2L1.2(b)(1)(B). The amendment says only revocation sentences prior to the deportation get added, so a revocation sentence won’t be added if the defendant gets it after returning.

One last note. The time you should definitely start thinking about this is when the guidelines amendments come out in their final proposed form each May 1. But the Commission floats the amendments in proposed form for comment even before May 1, so you can get insights about possible amendments several months before May 1. Given the ex post facto protection that prevents there being any harm from delay, you might think about looking at the proposed amendments the Commission puts out even before May and think about delaying sentencing even at that point.

If anyone has any thoughts or experiences to share in this area, please feel free to comment, using the comment option below.