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ALERT – UNITED STATES SENTENCING COMMISSION AMENDMENTS

The Law Office of Tom Norrid

SAMARITAN PROJECTS LLC

P.O. Box 9244

Springfield, MO 65801-9244

417-236-1179

 

SENTENCING COMMISSION PROMULGATES GUDELINE AMENDMENT TO LIMIT USE OF ACQUITTED CONDUCT IN GUIDELINE CALCULATIONS

 

At a public meeting this afternoon, the U.S. Sentencing Commission voted to promulgate a number of notable new guideline amendments, including perhaps most notably an amendment to preclude the consideration of acquitted conduct in guideline calculations. The Commission's vote on this acquitted conduct amendment appeared to be unanimous, but then there seemed to be some dissention about whether to conduct a data analysis and seek public comment on whether to make this acquitted conduct amendment retroactive. The retroactivity analysis for the acquitted conduct amendment did get majority support.

 

SENTENCING COMMISSION PRESS RELEASE:

 

The bipartisan United States Sentencing Commission voted unanimously today to prohibit conduct for which a person was acquitted in federal court from being used in calculating a sentence range under the federal guidelines. The Commission’s seven members also joined together to pass a range of additional reforms, including those that bring uniformity to sentencing for certain gun and financial crimes and provide a potential downward departure based on age. “The reforms passed today reflect a bipartisan commitment to creating a more effective and just sentencing system,” said Commission Chair Judge Carlton W. Reeves.

 

“Not guilty means not guilty,” said Chair Reeves. “By enshrining this basic fact within the federal sentencing guidelines, the Commission is taking an important step to protect the credibility of our courts and criminal justice system.” This reform comes amid robust debate on acquitted conduct from across the country. Last year, several Supreme Court Justices called for the Commission to address acquitted conduct, while a bipartisan group of legislators in Congress introduced a bill limiting the use of acquitted conduct in sentencing.

 

In addition to limiting the use of acquitted conduct, the Commission revised its policy statement on age, permitting judges to downward depart based on age if appropriate in light of today’s richer understanding of the science and data surrounding youthful individuals, including recognition that cognitive changes lasting into the mid-20s affect individual behavior, culpability and the age-crime curve.

 

The Commission also moved commentary regarding the definition of “loss” to the body of the fraud, theft, and property destruction guideline to ensure courts uniformly calculate loss amounts.

 

And the Commission addressed a circuit conflict over how to properly punish crimes involving weapons with altered or obliterated serial numbers.

 

The Commission will deliver amendments to Congress by May 1, 2024. If Congress does not act to disapprove the changes, they will go into effect on November 1, 2024.

 

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WASHINGTON – Sen. John Kennedy (R-La.), a member of the Senate Judiciary Committee, today introduced the Consensus in Sentencing Act to require the U.S. Sentencing Commission to achieve bipartisan agreement to make major policy changes.

 

The legislation would amend 28 U.S.C. § 994(a) to require that amendments to the Sentencing Guidelines receive five votes from the Commission’s seven voting members.

 

“The Sentencing Commission for decades strove to achieve bipartisan agreement when adopting amendments to the Sentencing Guidelines. In recent years, the Commission has lost its way and begun forcing through amendments on party-line votes. My bill would help the Sentencing Commission revive its consensus-building culture,” said Kennedy.

 

Background:

 

The Sentencing Commission is made up of seven voting members. No more than four members can belong to the same political party.

 

In a sharp break from its traditional bipartisan practices, the Commission’s current leadership has forced through several major policy changes to federal sentencing law on a party-line basis.

 

The Commission is currently considering several other major proposed changes.

Sens. Ted Cruz (R-Texas), John Cornyn (R-Texas), Tom Cotton (R-Ark.) and Marco Rubio (R-Fla.) cosponsored the legislation.

 

We are pretty sure that recent U.S. Sentencing Commission votes on a 4-3 basis were the adoption of the new sentence reduction (compassionate release) guidelines and the decision to make new criminal history rules retroactive. We believe all other actions by the current Commission have been unanimous, but are not entirely sure about all vote tallies.

 

This bill was introducted the day before the Commission is scheduled to conduct a public meeting with an agenda that includes "Vote to Promulgate Proposed Amendments."  The timing here cannot be pure coincidence, and we wonder if we should now expect some split votes (or not expect split votes) on some of these proposed amendment topics (e.g., perhaps there is an proposed amendment on acquitted conduct that is driving controversy beyond the wall of the USSC building and all the way up to Capitol Hill).


We doubt this bill to require five votes for guideline amendments will get enacted anytime soon, if ever. But the bill's very introduction highlights that this active new Commission is garnering notable attention for its notable activity.

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