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Sentencing Commission News

The following information is being provided at the request of the United States Sentencing Commission.

Pursuant to section 8 of the Fair Sentencing Act of 2010, Pub. L. 111-220, the United States Sentencing Commission has promulgated a temporary, emergency amendment regarding drug trafficking offenses, including crack cocaine offenses, that is effective November 1, 2010. Text of the temporary, emergency amendment and the reason for amendment were published in the Federal Register (75 FR 66188) on October 27, 2010. This official version and an unofficial "reader friendly" version are posted on the Commission's website, http://www.ussc.gov.

A supplement to the 2010 Guidelines Manual containing those guidelines amended by the emergency amendment (§§2D1.1, 2D1.14, 2D2.1, 2K2.4, 3B1.4, and 3C1.1) will be forthcoming in hard copy. Both the 2010 Guidelines Manual and the supplement will be posted on the Commission's website on November 1, 2010.

The USSC has released it's submission to Congress and reasons for amendments to the guidelines, which will now provide you with an "official" citable source for the amendments when you encourage courts to consider them now. Also attached is a brief summary and analysis of the key amendments. Much of the summary was circulated in separate emails earlier this month, but we modified and compiled it for ease of use.

A court should consider these amendments now because they reflect the "Commission's current policy position ... [that] may have some influence on the judge's ultimate discretionary choice of sentence.” United States v. Godin (“ Godin II ”), 522 F.3d 133, 134 (1st Cir.2008) (cited in United States v. Ahrendt, 560 F.3d 69 (1st Cir. 2009). If counsel does not bring these to the court's attention now, an appellate court is unlikely to remand for consideration. See United States v. Alexander, 553 F.3d 591, 593 (7th Cir. 2009).

USSC Zone Expansion and Treatment Departure for Zone C

On April 13,2010, the USSC passed two amendments designed to provide courts with more sentencing options. The amendments that will be transmitted to Congress and should take effect in November 2010 are attached.

1) Part B of the amendment increases Zones B and C by one level in each criminal history category Clients with ranges of 8-14 months (CHC's I-IV) and 9-15 months (CHC V-VI) will fall within Zone B rather than C; clients in a range of 12-18 months (all CHC's) will fall within Zone C rather than D.

2) Part A of the amendment provides for a treatment departure from Zone C to Zone B. The amendment clarifies 5C1.1 n,6 by giving examples of when a treatment alternative departure from Zone C to Zone B may be appropriate for drug and alcohol abusers as well as those who suffer from "significant mental illness." Under the terms of the guideline, the court must find (A) "that the defendant is an abuser of narcotics, other controlled substances, or alcohol, or suffer from a significant mental illness," and (B) "the defendant's criminality must be related to the treatment problems to be addressed before a departure is warranted." The court should also consider "the likelihood that completion of the treatment program will successfully address the treatment problem, thereby reducing the risk to the public from further crimes of the defendant and (2) whether imposition of less imprisonment than required by Zone C will increase the risk to the public from further crimes of the defendant."

Clients in CH III or above. The guidelines continue to not recommend the use of substitutes for imprisonment for "most defendants with a criminal history category of III or above." USSC 5C1.1, n.7. The Commission, however, voted to remove the statement that "such defendants have failed to reform despite the use of such alternatives." Removal of that language should permit you to argue that your client is an exception to the general rule because he or she has not received treatment or that prior treatment was not adequate to meet the client's needs. It would also give you an opportunity to educate your judge about how relapse is common among drug/alcohol abusers and that mentally ill defendants often lack insight into their illness, which impedes their treatment and medication compliance.

Recognizing pretrial community confinement or home detention. For those of you with judges who cling to the guidelines and statutes, you may need to get creative with the sentencing statutes and recommendations to ensure that your clients get "credit" for their pretrial efforts and spend the least amount of time in community confinement, home detention, or imprisonment (for Class a and B felonies where a minimal term of imprisonment is statutorily required).

There does not appear to be any statute prohibiting a court from deciding that a defendant has already satisfied a condition of probation or supervised release. Take for example, the defendant in a 12-18 month range who receives a sentence of probation with twelve months intermittent confinement, community confinement or home detention If before sentencing your client has already completed a 60 day residential treatment program and remained on home detention for an additional 2 months, you should be able to ask the court to find that the defendant has already satisfied 4 months of the condition that he spend time in community confinement or home detention. See also 18 U.S.C. 3564(a) ("term of probation commences on the day that the sentence of probation is imposed, unless otherwise ordered by the court") (emphasis added).

The same reasoning applies to defendants sentenced to terms of imprisonment with supervised release. 18 U.S.C. 3583(a) provides that a term of supervised release commences after imprisonment, but nothing in the statute precludes a court from finding that a condition of supervised release has already been satisfied.

Do not be deterred form the general rule that a defendant's presentencing confinement in community confinement or home detention cannot be credited toward the term of imprisonment. Reno v. Koray, 515 U.S. 50 (1995). You are not asking that the court credit the time toward time in official detention under 18 U.S.C. 3583(b).

BOP placement in community confinement for the minimal term of imprisonment. Attached is the BOP memo regarding front-end designations to community confinement. Keep this in mind when structuring sentences and be sure to ask the court to recommend that BOP designate a RRC placement.

Final alternatives Amendment to Congress
BOP memorandum for designation and sentence computation center
On Tuesday, April 13, 2010, the U.S. Sentencing Commission voted to amend the Guidelines Manual by deleting §4A1.1(e) (recency points).  The presumed reason for the amendment is that recency points add nothing to the predictive quality of the criminal history score and fail to reflect meaningful differences in offender culpability, as set forth at pp. 90-98 of the Defenders’ testimony to the Commission, available at http://www.fd.org/pdf_lib/FPD_Testimony%20of%20Meyers%20and%20Mariano_FINAL.pdf.

The recency amendment (along with other amendments being voted on this cycle) will be sent to Congress on May 1, 2010 and, if no further action is taken, will be adopted on Nov. 1, 2010.  This does not mean, however, that courts must continue applying recency points in the interim.  The court remains free under 18 U.S.C. § 3553(a) and Supreme Court precedent to disagree with any part of the guidelines on policy grounds.  Defense counsel should argue that courts should not assess recency points now for the same reason that the Commission recommends abandoning them on Nov. 1st: they do not reflect either increased culpability or an increased risk of recidivism and thus do not serve any sentencing purpose.
The Commission will be announcing all of the pending amendments on its website soon, www.ussc.gov, and SRC will provide a summary of those amendments ASAP.
Attached is a copy of the Federal Public and Community Defenders' comments on the Commission's proposed priority policy issues for the amendment cycle ending May 1, 2010. 8/2009

The United States Sentencing Commission has released a new publication, Impact of Prior Minor Offenses on Eligibility for Safety Valve. This report provides an analysis of the role of convictions for prior minor offenses in the sentences of federal offenders. To view this publication, please click on the following link: http://www.ussc.gov/general/20090316_Safety_Valve.pdf

Nomination of William K. Sessions III to be Chair of the United States Sentencing Commission

Today, President Obama announced that he is nominating Judge William K. Sessions III to be the Chair of the United States Sentencing Commission. Judge Sessions, who is currently a Vice Chair of the Commission, has served on the Sentencing Commission since President Clinton nominated him and he was confirmed by the Senate in 1999. President Bush re-nominated him for a second Commissioner term in 2003. Judge Sessions has been a federal judge on the District Court of Vermont since his nomination and confirmation in 1995. Judge Sessions is also a member of the Judicial Conference of the United States. He received his bachelor’s degree from Middlebury College and his J.D. from the National Law Center at George Washington University. 4/20/2009

The United States Sentencing Commission released a new publication, Overview of Federal Criminal Cases, Fiscal Year 2007. This publication provides a broad overview of federal sentencing data for fiscal year 2007. Readers will find this publication to be a brief, easy-to-use reference on the types of criminal cases handled by the federal courts and the punishments imposed on the offenders convicted in those cases. This publication will be available in hard copy format in the coming weeks.  12/2008

To view this publication, click on the following link: http://www.ussc.gov/general/20081222_Data_Overview.pdf

Attached is the Defenders' final letter, being delivered today. It is long, but meant to be good and helpful and to strike the right tone. Thanks to Alan Dubois, Lisa Freeland, Jennifer Coffin, Sara Noonan, Henry Bemporad and Brad Bogan for writing parts of the memo, and to Molly Roth, Paul Hofer and Mary Price for editing and additional good ideas.

On July 16, 2008, the Federal Defender Guidelines Committee delivered a letter to the US Sentencing Commission outlining what we felt were the appropriate priorities the Commission should address in the upcoming cycle (2008-2009). The letter is attached. It is the result of the Committee's deliberations, input from various Defenders, the hard work of the Sentencing Resource Counsel, and discussions with the staff of the Commission.

I especially wish to thank the Sentencing Resource Counsel staff, and Jennifer Coffin, for the drafting.

We are pressing the Commission to reduce the career offender guideline because the Commission's own data and studies show that the penalties are overstated. We are also attacking relevant conduct on various fronts, especially acquitted conduct, in light of sixth amendment concerns. We are addressing procedure and notice in light of recent cases. Finally, we are following up on the interest the Commission has shown in exploring alternatives to sentencing. We continue to raise the issue of the drug guidelines in general, and crack/cocaine in particular, but we feel that any change will likely have to come from Congress. Immigration hopefully will be dormant this year. 7/2008

Rare Concessions from USSC.  Information 3/2008
Attached is the 10th edition of the Introduction to Federal Sentencing.  3/2008

Attached are the Federal Public Defender and Community Defender comments on the Sentencing Commission's amendments for this cycle. Thanks to our SRC staff for their hard work, Amy Baron-Evans, Anne Blanchard, Sara Noonan and especially Jennifer Coffin. Thanks as well to the Defenders and Assistant Defenders who also helped draft, notably Henry Bemporad, Miriam Conrad, Lisa Freeland, and Margy Meyers.

Testifying on behalf of the FPD at the Commission hearings on Thursday, March 13th will be Marianne Mariano, Acting Federal Defender, W.D. N.Y., and Maureen Franco, AFPD, W.D. Tex.
Chair, FPD Guideline Committee
Comments 3/6/2008

Sentencing Commission clarifies that crack offenders who received a Booker variance are eligible for a sentence reduction. Memo 2/12/2008
Attached is a letter the Federal Public and Community Defenders sent to the Sentencing Commission today regarding the Emergency Amendments related to the Disaster Relief Fraud Sentence Enhancement Bill. Sara E. Noonan, R & W with the Sentencing Resource Counsel Staff, did a fine job of analyzing the increased statutory maximums, the guideline implications, and the reasons why any increase in the fraud guidelines is unnecessary. 1/8/2008
Attached are our comments to the US Sentencing Commission regarding a Victims Advisory Group. We submitted jointly with NACDL and FAMM.

Thanks to Amy Baron Evans and Tom Hillier for drafting and editing. 7/31/2007
U.S. Sentencing Commission votes for changes to crack cocaine guidelines
Attachment 4/30/2007
Up, Up and Away: Springtime at the Commission
The amendments note

Revised Proposed Amendment: Criminal History - Minor Offenses and Related Cases

Proposed Amendment: §1B1.13 (Reduction in Term of Imprisonment as a Result of Motion by Director of Bureau of Prisons)

The Commission is considering various options to 2L1.2 (reentry). While they are doing statistical data runs on the options to see the impact, Congress is also entering the fray. We've adopted some of the good aspects of the pending proposed legislation and ask the Com'n to keep in mind that if Congress enacts legislation that has the effect of reducing sentences, the Com'n must follow that directive.
Option 9 letter
Option 9 revised 4/07

We keep plugging away. The Sentencing Com'n staff sent out a new draft of a proposed amendment to 2L1.2 (1326). It improves things slightly (a supposed 4% reduction in offender senetnces), but there are some problems, and it still includes categorization. We responded yesterday, and proposed a variation that used past sentences imposed as the marker for seriousness of the offense.

I have attached the Com'n Option 7, as well as Our Response and our Option 8.

Thanks are due to Henry Bemporad, Brad Bogan, Margy Meyers, and Amy and Anne for their help. We're gathering data from the field to see how this plays out.

As for testimony on Tuesday, march 21st, Miriam Conrad will testify regarding Criminal History, Amy will testify as to Sex Offenses, Anne will testify on Crack/Cocaine and Sentence Reduction and I will testify on Immigration.
Jon 3/07
This is the last letter to the Commission.. We got it in under the wire. It deals with terrorism and transportation.
Letter 3/07

This letter is the latest in a long line of ABA letters and testimony on the issue of sentence reduction for "extraordinary and compelling reasons" under 18 USC 3582(c)(1)(A)(i), which have encouraged the US Sentencing Commission to address its policy-making obligations under the 1984 Sentencing Reform Act. The ABA draft policy statement submitted with the comments has been endorsed by the Practitioners Advisory Group, the Federal Defenders, the NACDL, and Families Against Mandatory Minimums. Steve Saltzburg will be testifying before the Commission on this issue on March 20.

USSC, Policy Statement 3-12-07

Attached are the comments we submitted to the US Sentencing Commission related to criminal history reform. Special thanks to Miriam Conrad, Amy Baron-Evans and Jennifer Coffin for their extraordinary work on this.
Comments 3/07
Attached is the letter we sent to the Sentencing Commission regarding their proposed amendments related to drugs. Thanks to the Sentencing Resource Counsel and staff for their analysis, drafting, and dedication.
Letter 3/07
Here are the FPD comments to the Intellectual Property amendments proposed by the Sentencing Commission.
Comments 3/07
Attached is our letter to the Sentencing Commission commenting on the proposed immigration amendments. Thanks to our indomitable SRC staff, especially R&W Jennifer Coffin, for their help. Jennifer did a great job on research, drafting, and policy-wonking.
Immigration Comments March 2007

Attached is a PDF of the most recent letter to Judge Hinojosa, Chair of the US Sentencing Commission, regarding the Commission's priorities for the upcoming year. We're following up on our previous letters, and restating some points regarding the crack/cocaine disparity, simplification (including relevant conduct), and criminal history. The visual equivalent to the written work is Edward Munch's "the Scream." Maybe things will now be different now that the Democrats' control Congress.

The letter was drafted by Amy Baron-Evans with assistance from Anne Blanchard, Sara Noonan and Jennifer Coffin. Thanks to all of them.
Jon 11/28/2006

The Commission has adopted Guidelines amendments in more than a dozen substantive areas. Some temporary amendments were repromulgated as permanent and are already in effect; others will take effect in November of this year. Here is a brief summary of the amendments you should be prepared to confront. 5.06
Attached is our letter to the US Sentencing Commission concerning trafficking in firearms and the proposed 2 level enhancement. We argue that the Com'n misses its mark, and that our proposal is more on target. 3.30.06
Attached is the letter we sent to the Sentencing Commission with further comments on the proposed steroids amendments. This letter followed the hearings and seeks to correct certain aspects of the testimony by the government. In particular, the dosage amount and weight of carrier were issues of concern (a "weight" and actual see approach makes more sense). The Commission indicated it was considering further comments but then didn't wait, and went ahead and voted steroids amendments. Nonetheless, to make the record (think of it as a policy proffer), we are submitting this letter to caution the Commission from acting without better information in the future and to resist the temptation to act where there is no need. The letter will continue to impact future policy discussions and debates. 3.27.06
Pursuant to the Anabolic Steroid Control Act of 2004 and the United States Parole Commission Extension and Sentencing Commission Authority Act of 2005, the United States Sentencing Commission promulgated a temporary, emergency amendment on anabolic steroids that is effective March 27, 2006. Text of the temporary, emergency amendment and the reason for the amendment will soon be published in the Federal Register, and is now available on the Commission's website: http://www.ussc.gov/FEDREG/March06FedReg.pdf

An accompanying staff report can be found on the Commission's website at http://www.ussc.gov/USSCsteroidsreport-0306.pdf. A supplement to the 2005 Guidelines Manual that sets forth this emergency amendment will be forthcoming.
Link to the latest News from the United States Sentencing Commission. Report on the Impact of United States v. Booker on Federal Sentencing. 3-14-2006
Testimony of Marjorie A. Meyers Federal Public Defender for the Southern District of Texas and Lucien B. Campbell Federal Public Defender for the Western District of Texas Before the United States Sentencing Commission Public Hearing on Proposed Immigration Amendments San Antonio, Texas.
February 21, 2006
Letter from the Federal Public and Community Defenders to the Sentencing Commission regarding its forthcoming post-Booker report. 1/10/2006




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