For the Defense - Vol. 8, Issue 4 - 34

Part A
Part B
The Commission modified §4A1.1 to redefine Criminal History
Category. Previously, any defendant who committed the current
offense while on a term of probation, supervised release and the
like would receive a two-point enhancement. That provision,
delineated at U.S.S.G. §4A1.1(d), has been removed in its entirety.
The Commission determined that these status points were not a
reflection of a defendant's likelihood to recidivate.33
However,
in the last five years, status points were applied in 37.5% of
cases where a defendant had any Criminal History points.34
When status points were added, defendants received a higher
Criminal History Category 61.5% of the time.35
The Commission
determined that violations of court supervision, standing alone,
were not a sufficient basis to enhance a defendant's sentence
based on the absence of recidivism.
A new subsection (e) was added and reads as follows:
Drug Trafficking
(e) Add 1 point if the defendant (1) receives 7
or more points under subsections (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.
The Commission believed that only defendants with multiple
prior convictions were likely to be recidivated. As such, subsection
(e) was added to minimize instances where a defendant's
sentence is increased due to status points.
This new Guideline has the near-immediate effect of lowering
the Guideline range of many incarcerated defendants. The
Commission estimates that about 11,495 defendants will be
eligible for sentencing reductions based on the amendment
in Part A.36
Over 8,800 of those defendants were sentenced
after October 1, 2017, but some defendants who are eligible
were sentenced as early as October 1, 1990.37
The Commission
further estimates that there are about 418 defendants who were
sentenced in the Third Circuit (including 329 in Pennsylvania).38
The 11,495 defendants were convicted of the following offenses:39
Offense Type
Drug Trafficking
Firearms
Robbery
Immigration
Fraud/Theft/Embezzlement
Child Pornography
Assault
Sexual Abuse
Money Laundering
Other
Number of Impacted
Defendants
4,658
2,371
1,391
1,049
419
325
257
250
171
604
It is estimated that 60.7% of defendants who are eligible
for reductions will receive a decrease of zero to twelve months
while 31.0% of defendants who are eligible for reductions
are estimated to receive a reduction of between twelve to
twenty-four months.40
The Commission also estimates that the
demographic breakdown of defendant by race was 43% Black,
27.8% Hispanic, and 25% White.41
34 For The Defense l Vol. 8, Issue 4
Fraud/Theft/Embezzlement
Money Laundering
Immigration
Bribery/Corruption
Tax
Other
Part B is likely to impact 7,272 defendants including 6,951
defendants who were sentenced after October 1, 2015.42
The
Commission estimates that this amendment will impact 256
defendants who were sentenced in the Third Circuit (including
135 in Pennsylvania).43
The most common types of conviction
were:44
Offense Type
Number of Impacted
Defendants
5,404
932
421
154
92
87
182
The Commission estimates that 51.9% of these defendants are
eligible to receive a reduction of between zero to twelve months
and 31.4% of these defendants are eligible to receive a reduction
of between twelve to twenty-four months. The Commission also
estimates that the demographic breakdown of defendant by
race was 9.9% Black, 69.9% Hispanic, and 16.9% White.45
For more information about this provision read the article on
page 10.
Part C
The Commentary to U.S.S.G. §4A1.3 entitled " Downward
Departures " was amended to include the following language
recommending a downward departure when:
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.
While the amendment was added " to recognize the changing
legal landscape as it pertains to simple possession of marihuana
offenses, " it was not given retroactive effect.46
***
These amendments, which were enacted after the Sentencing
Commission received sufficient members to have a quorum for
the first time in four years, play a critical role for many cases
including cases for defendants who are already serving terms of
incarceration. Defense attorneys should familiarize themselves
with these changes as they will certainly impact future clients
and may impact prior clients already sentenced.
Here, the Commission added an entirely new Guideline,
§4C1.1, which is bound to have a significant impact on many
first-time offenders. The new Amendment provides a two-point
downward adjustment for defendants with no prior convictions.
This provision applies retroactively to currently incarcerated
defendants.
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For the Defense - Vol. 8, Issue 4

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