On August 24, 2023, a divided Commission voted 4-3 to make two new amendments to the Guidelines retroactive.  Assuming no Congressional action to the contrary, these amendments go into effect on November 1, 2023.  The first amendment limits the overall criminal history impact of “status points” (i.e., the additional criminal history points given to defendants for the fact of having committed the instant offense while under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status). Commission staff estimate that approximately 11,495 inmates are eligible to seek a modification of sentence. The current average sentence for these offenders is 120 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for these offenders would be 106 months, a reduction of 14 months (or 11.7%).

The second amendment provides a decrease of two levels from the offense level for defendants who did not receive any criminal history points and whose instant offense did not involve specified aggravating factors.  Inmates may petition their sentencing court for a limited resentencing should they qualify for either of these potential reductions in sentence, but a court may not make any reductions effective prior to February 1, 2024. Commission staff estimate that 7,272 inmates are eligible to seek a modification of sentence.  The current average sentence for those eligible zero-point offenders is 85 months.  If the courts were to grant the full reduction possible in each case, the projected new average sentence for those offenders would be 70 months, a reduction of 15 months (or 17.6%).

The Commission also voted unanimously on several new policy priorities including “[c]onsideration of possible amendments to the Guidelines Manual to prohibit the use of acquitted conduct in applying the guidelines.”  The U.S. Supreme Court expressly declined to take up the issue last term to allow the Commission to first make any changes to the Guidelines it considers necessary.

SentencingStats has been actively preparing for this landmark decision. We will be releasing products and services soon specifically geared towards zero point offenders to help calculate and communicate to the court data and graphs supporting the impact on their sentence.