For the Defense - Vol. 8, Issue 4 - 32

caregiver.7 Finally, in keeping with the ever-changing structure of
" family " , the Commission added a ground for relief where the
defendant can show a relationship similar to that with a child
or a parent with a person who is neither, but whose caretaking
needs could only be met by the defendant.8
The Commission also added two entirely new categories of
relief- " Victim of Abuse " and " Unusually Long Sentence. "
The first provides a path to relief for a defendant who has
been sexually victimized by BOP personnel, but only after
the misconduct is established by a criminal conviction of
the perpetrator or a finding of liability or admission by the
perpetrator of the misconduct in a civil proceeding.9
The only
exceptions to these requirements are if a defendant can show
undue delay in the related criminal/civil proceedings or that they
are in imminent danger.10
The second new category addresses a circuit split regarding
whether non-retroactive changes in law qualify as extraordinary
and compelling reasons to reduce a sentence.11
While the
Commission ultimately voted to permit such changes in law to
qualify as a basis for relief, it also imposed strict prerequisites to
its use. A defendant trying to avail him or herself of this benefit,
for example, must have served at least 10 years of an unusually
long sentence.12
Moreover, the defendant must show that the
intervening non-retroactive change in law would result in a gross
disparity between the sentence being served by the defendant
and one that could be imposed after the non-retroactive
change in law.13
While non-retroactive Sentencing Guidelines
amendments are specifically excluded as a basis of relief, they
may be considered in determining the extent of a sentence
reduction where a defendant has shown otherwise permissible
extraordinary and compelling reasons exist warranting a
reduction in sentence.14
The Commission kept the " Other Reasons " catchall ground
for relief, modifying it only to clarify that extraordinary and
compelling reasons may exist where a defendant presents
circumstances not specifically covered by the Policy Statement
that either alone, or in combination with the specific reasons for
compassionate release, are similar in gravity to those enumerated
reasons, rather than similar in nature and consequence.15
Amendment # 817: U.S.S.G §5C1.2 (Limitation on Applicability
of Statutory Minimum Sentences in Certain Cases)
Judicial
discretion
at
sentencing
is
often
constrained
by
statutorily imposed mandatory minimum sentences that exist across
the spectrum of criminalized conduct.16
One exception to these
minimum sentencing requirements is found in 18 U.S.C § 3553(f)
otherwise known as the " safety valve " provision.
The First Step Act expanded applicability of Section 3553(f)'s
safety valve provision in two ways, and the Commission amended
Guideline §5C1.2 to comport with these statutory changes. First,
they extended the safety valve's reach to include maritime cases,
whereas before its reach was limited to certain drug offenses
only.17
Second, and perhaps more importantly, they modified
the criminal history requirements to include a much larger array
of defendants. Prior to the First Step Act's passage, this safety
valve provision applied only to defendants who had, inter alia,18
no more than one criminal history point. Now the safety valve
applies if a court finds at sentencing that a defendant does
not have: a) more than four criminal history points, excluding
32 For The Defense l Vol. 8, Issue 4
One issue that has been periodically litigated is whether a
defendant may insist that the Government move for the third
point for acceptance of responsibility when the defendant pleads
guilty but still raises other challenges in the form of suppression
hearings or challenges to sentencing. This Guideline amendment
encourages prosecutors to file a motion asking for the third
point even where a defendant has litigated a suppression motion
or plans to challenge certain sentencing enhancements.
This amendment changes U.S.S.G. §3E1.1(b) to include the
following language:
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. "
Prior to passage of the First Step Act, applicability of the safety
valve provision was limited to defendants who, among other
things, had only one criminal history point and whose criminal
history category was therefore a I. Under that regime, Congress
required-and the Commission implemented-a 24-month floor
for defendants subject to at least a five year mandatory minimum
sentence. To achieve this 24-month floor, the corresponding
offense level for a defendant with a Criminal History Category of
I is 17. Post amendments related to the First Step Act, defendants
in any criminal history category may avail themselves of safety
valve protection, provided they meet all other requirements.
Amendment #820: U.S.S.G §3E1.1 (Defining " preparing for trial "
in the context of a government motion for a third point for
acceptance of responsibility)
criminal history points from one-point offenses as determined
by the Guidelines; b) a prior three-point offense as determined
by the guidelines; and c) a prior two-point violent offense as
determined by the guidelines.19
A circuit split developed surrounding the function of the word
" and " connecting the three subsections above. On October
2, 2023, the United States Supreme Court heard argument in
Pulsifer v. United States20
wherein it is set to resolve this circuit
split. Specifically, the question before the Court is whether a
defendant must show he or she has none of the indicators before
the provision can apply, or if it is sufficient that the defendant
does not have all the indicators. In the case under consideration,
the defendant had two of the three indicators and argued that
he was entitled to safety valve protection because he did not
possess all three. The lower courts and, not surprisingly, the
government, took the more restrictive position requiring that a
defendant have none of the indicators before the safety valve
provision could apply.21
For the Defense - Vol. 8, Issue 4

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