Incoming Amendment to US Sentencing Guidelines May Benefit White Collar Defendants

New USSG Section 4C1.1 Provides 2-point Reduction for Zero Point Offenders

The U.S. Sentencing Commission’s 2023 Amendments to the Sentencing Guidelines include an amendment that will reward offenders who have zero criminal history points with a two level decrease to their total offense level.[1] That means offenders without prior convictions, offenders with prior convictions that are discounted because they did not occur within the time limits set by § 4A1.2(d) and (e), or offenders with prior convictions that were not used in computing the criminal history category “for reasons other than their “staleness’ (e.g. sentences resulting from foreign or tribal court convictions, minor misdemeanor convictions, or infractions)” will be eligible. [2]

The amendment was based in part on a series of studies of recidivism rates of federal offenders who were released in 2010.[3] The recidivism data itself may be helpful in arguing for a downward variance, but one key finding led to the amendment: while zero point offenders and 1 point offenders are both in the same Criminal History Category, zero point offenders were rearrested only 26.8% of the time, while offenders with one criminal history point were rearrested 42.3% of the time. Zero point offenders with no prior contact with the criminal justice system were rearrested 20.3% of the time. [4]

New § 4C1.1 provides for a two-level decrease when the following criteria are met:

1. the defendant did not receive any criminal history points from Ch. 4, Part A;

2. the defendant did not receive an adjustment under §3A1.4 (Terrorism);

3. the defendant did not use violence or credible threats of violence in connection with the offense;

4. the offense did not result in death or serious bodily injury;

5. the instant offense of conviction is not a sex offense;

6. the defendant did not personally cause substantial financial hardship (courts should consider Application Note 4(F) in making this determination);

7. the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

8. the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);

9. the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and

10. The defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

Unless Congress affirmatively disapproves the Sentencing Commission’s Amendments to the Sentencing Guidelines, Section 4C1.1 will go into effect on November 1, 2023.

[1] U.S. Sentencing Commission Amendments to the Sentencing Guidelines, April 27, 2023 Compilation, at 77 (available at https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/202305_RF.pdf). [2] Id. at 79. [3] The 2010 Cohort Report Series is available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210930_Recidivism.pdf [4] U.S. Sentencing Commission, Recidivism of Federal Offenders Released in 2010, at 27-28 (available at https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2021/20210930_Recidivism.pdf).