Sentencing Commission Makes Crack Amendment Retroactive

Posted on Categories Criminal Law & Process, Federal Criminal Law & Process, Federal Sentencing

The U.S. Sentencing Commission announced yesterday that the most important of the recent changes to the crack sentencing guidelines will be made retroactive, assuming Congress does nothing to block retroactivity before November 1.   Filling in the details, the Commission has now posted the unofficial “reader-friendly” version of its new retroactivity amendment.  The news is very good for defendants serving long prison terms under the prior, harsher versions of the crack sentencing guidelines.  It is also important to note, however, that the Commission used this amendment as an occasion to make some subtle, but significant, changes to the retroactivity guideline that will diminish the value of retroactivity to some defendants with pending or future sentence modification requests.

Here are the highlights of the Commission’s work.

First, the big, good news for crack defendants: The Commission chose to make retroactive the changes to the drug quantity table that were promulgated in April.  The Commission also made retroactive another guidelines amendment that reduces sentences for crack defendants convicted of simple possession.  (To be technically precise, these are Parts A and C of Amendment 750.)  These were the two decisions that I (and many other witnesses) advocated most forcefully for at the June hearing on retroactivity (see my post here), and they will make a big difference for a large number of people.  According to Commission analysis, “approximately 12,000 offenders would be eligible to seek a reduced sentence and the average sentence reduction would be approximately 23 percent.”  To be sure, district judges will have discretion to turn down any sentence-modification requests they receive, but the experience with retroactivity for the 2007 crack amendment indicates that the great majority of eligible defendants will indeed be granted sentence reductions.

Second, the Commission wisely rejected the Administration’s misguided request to disqualify defendants above Criminal History III or with firearms involvement.  (See my post here.)

Third, the Commission chose not to make any part of Part B retroactive.  Part B adds a variety of new aggravating and mitigating specific offense characteristics to the drug trafficking guideline.  Although I think the new “minimal role cap” of Part B could have been implemented retroactively with fairness and relative ease, the remainder of Part B would have presented more significant administrative burdens and fairness objections.

Fourth, the bad news for defendants: while the previous version of the retroactivity guideline (1B1.10) authorized sentence reductions below the new guidelines range if the original sentence had been a departure, the Commission has now indicated that the bottom of the amended guidelines range is a firm floor in all cases except cases involving a downward departure for substantial assistance on the government’s motion.  Apart from a desire to minimize the administrative burdens of retroactivity, I’m not sure the restriction makes much sense.  Imagine a defendant who received a downward departure from the previous crack guidelines, with the sentencing judge concluding that a variety of unusual mitigating circumstances rendered the defendant substantially less culpable than other defendants responsible for a comparable quantity of crack.  Now, with the new drug quantity table made retroactive, typical crack defendants have their sentences reduced to the same level as our super-mitigated defendant.  If the super-mitigated defendant cannot also get a sentence reduction, then the sentences no longer reflect important distinctions in culpability.

Even less do I see merit in making an exception in cases of substantial assistance.  I’ve always had mixed feelings about the highly preferential treatment snitches get under the guidelines, and it’s hard to see why they get yet another benefit here relative to other defendants with more genuinely mitigating circumstances.  Certainly, when we are talking about sentence modifications, there is no added incentive for snitching — it seems highly unlikely that a defendant deciding whether or not to cooperate would take into account the remote possibility that the applicable guidelines range might someday be reduced and that the Commission would then make the change retroactive.

In any event, judges and practitioners should note that the new version applies to all requests for sentence modification decided on or after the effective date of the amendment (Nov. 1, 2011) — including any requests based on the 2007 amendment that are still pending then.  Defendants who are eligible for a reduction based on the 2007 amendment and who received a non-substantial-assistance downward departure at their original sentencing should do everything they can to push their sentence modification requests forward in the next five months.

Finally, in amended application note 1(a) to the retroactivity guideline, the Commission resolved a circuit split on whether there are any types of departures that should be taken into account in calculating a defendant’s new guidelines range (e.g., under 4A1.3 for inadequacy of criminal history category).  The answer is “no.”  This changes the law in the First, Second, and Fourth Circuits.

Cross posted at Life Sentences Blog.

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