2023 Amendments to the US Sentencing Guidelines

On November 1, 2023, critical changes to the Federal Sentencing Guidelines went into effect after having been adopted by the United States Sentencing Commission. These changes address a wide range of issues including, but not limited to, sentencing reductions, criminal history points, career offender enhancements, firearms offenses, and fake pills.

It’s the first time the guidelines have been revised in years, due to the Commission’s lack of a quorum between January 2019 and August 2022. Although the guidelines aren’t binding, they are—at a minimum—the starting point for federal judges. It is crucial that you consult with an attorney familiar with these changes if you have been sentenced in for a federal offense or if you are facing a federal sentencing hearing. At Parmer Law, we are committed to guiding you through these updates with our expert legal counsel and comprehensive understanding of federal criminal defense. Our resources and insights will help demystify the impact of these amendments, ensuring you or your loved ones are well-prepared for any legal challenges ahead.

Amendment #821 – Criminal History (“Zero Point Offenders”)

Part A
of the amendment addresses “Status Points,” decreasing them by one point for individuals with seven or more criminal history points and eliminating Status Points for those with six or less criminal history points.

Part B creates a new §4C1.1 guideline that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors.

In addition to having zero criminal history points, all of the following criteria must be met:

  • the defendant did not receive an adjustment under §3A1.4 (Terrorism);
  • the defendant did not use violence or credible threats of violence in connection with the offense;
  • the offense did not result in death or serious bodily injury;
  • the instant offense of conviction is not a sex offense;
  • the defendant did not personally cause substantial financial hardship;
  • 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;
  • the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);
  • the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
  • 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.

Part C amends the §4A1.3 Commentary to include prior marijuana possession sentences as an example of when a downward departure may be warranted for criminal history reasons.

Amendment #841 – “Compassionate Release”

The amendment revises §1B1.13 (colloquially referred to as the Commission’s “Compassionate Release” policy statement) to reflect that a defendant is now authorized to file a motion under 18 U.S.C. § 3582(c)(1)(A), making §1B1.13 applicable to both defendant-filed and BOP-filed motions.

The new amendment:

(1) adds “Medical Circumstances” subcategories – §1B1.13(b)(1)

The amendment recognizes serious medical conditions requiring long-term care that is not being provided while in custody and also adds language to address some of the unique and unforeseen circumstances arising from the COVID-19 pandemic. The new reasons are targeted to ensure consideration of the defendant’s individual health circumstances, the level of risk at the defendant’s facility, and the ability to adequately mitigate the defendant’s individualized risk.

(2) modifies the “Family Circumstances” category – §1B1.13(b)(3)

This modification expands the existing provision relating to the death or incapacitation of the caregiver of a defendant’s minor child to include a child who is 18 years of age or older and incapable of self-care because of a mental or physical disability or a medical condition. Second, the modification adds a new provision for cases in which a defendant’s parent is incapacitated. Finally, the modification adds a second new provision that applies when similar circumstances exist with respect to a person whose relationship with the defendant is similar in kind to that of an immediate family member. 

(3) adds a “Victim of Abuse” category – §1B1.13(b)(4)

This provision responds, in part, to the Department of Justice’s recognition that use of Section 3582(c)(1)(A) may be appropriate “where an individual in BOP custody has been determined to have been the victim of sexual assault perpetrated by BOP personnel.”

(4) revises the “Other Reasons” category – §1B1.13(b)(5)

 This catch-all “other reasons” provision will provide judge’s the discretion to fashion appropriate relief for extraordinary cases that do not fall neatly within the previously limited criteria, and

(5) adds an “Unusually Long Sentences” category – §1B1.13(b)(6)

This provision permits consideration of non-retroactive changes in law in a narrow set of circumstances.

Amendment #817 – Safety Valve

The amendment implements the provision of the First Step Act expanding the applicability of the safety valve provision by amending §5C1.2 and its corresponding commentary to reflect the broader class of defendants who are eligible for safety valve relief under the Act.

The amendment also revises §5C1.2(b) to account for the expanded class of defendants who qualify for safety valve relief.

Amendment #818 – Fake pills/fentanyl

The amendment adds a 2-level enhancement at §2D1.1(b)(13) for cases where the defendant represented or marketed as a legitimately manufactured drug another mixture or substance containing fentanyl (Nphenyl-N- [1-(2-phenylethyl)-4-piperidinyl] propanamide) or a fentanyl analogue, and acted with willful blindness or conscious avoidance of knowledge that such mixture or substance was not the legitimately manufactured drug.

Amendment #822 – Career Offender

This amendment clarifies definitions pertaining to the §4B1.2 Career Offender guideline and addresses application issues regarding the meaning of “robbery” and “extortion,” and the treatment of inchoate offenses.

Specifically, the amendment moves (without change) the definitions including certain inchoate and accessory offenses as well as enumerated offenses (i.e., “forcible sex offense” and “extortion”) and “prior felony conviction” from the §4B1.2 Commentary to the guideline itself.

The amendment adds a definition of “robbery” that mirrors the “robbery” definition at 18 U.S.C. § 1951(b)(1) and revises the definition of “controlled substance offense” in §4B1.2(b) to include new maritime-related offenses.

Amendment #820 – Acceptance of Responsibility

The amendment defines the term “preparing for trial,” which appears in §3E1.1(b) and Application Note 6 to §3E1.1.

The amendment defines “preparing for trial” as “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.”

The amendment also deletes hortatory language that the Commission previously added to Application Note 6 providing that the “government should not withhold such a motion based on interests not identified in §3E1.1, such as whether the defendant agrees to waive his or her right to appeal.”

Amendment #819 – Firearms

The amendment adds §2K2.1 references to Appendix A (Statutory Index) for the new offenses established by the Act and sets the §2K2.1 base offense level to account for these new offenses.

The amendment expands the specific offense characteristic at (b)(5) to increase penalties for illegally transferring a firearm and creates an additional 2-level increase at (b)(8) for trafficking in connection with knowingly participating in a criminal organization.

The amendment adds a 4-level increase at (b)(4) for certain offenses involving “ghost guns” (privately made guns not marked with a serial number).

Finally, the amendment creates a 2-level decrease at (b)(9) targeting the less culpable straw purchasers with no more than one criminal history point.

Amendment #816 – Sexual Abuse

The amendment first creates Appendix A references for new offenses created by the Violence Against Women Act (VAWA) Reauthorization Act of 2022 at 18 U.S.C. § 250 concerning sexual misconduct while committing civil rights offenses and 18 U.S.C. § 2243(c) concerning sexual abuse of an individual in federal custody.

The amendment also increases the base offense level at §2A3.3 (Criminal Sexual Abuse of a Ward or Attempt to Commit Such Acts) for cases involving sexual abuse committed by law enforcement or correctional personnel against victims in their custody, care, or supervision from 14 to 22.

It also addresses the presence of aggravating factors in sexual abuse offenses by providing a cross reference to §2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse) for cases where the offense involved criminal sexual abuse or attempt to commit criminal sexual abuse.