[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Notices]
[Pages 60534-60536]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18977]


=======================================================================
-----------------------------------------------------------------------

UNITED STATES SENTENCING COMMISSION


Sentencing Guidelines for the United States Courts

AGENCY: United States Sentencing Commission.

ACTION: Notice of final action regarding retroactive application of 
Parts A and B, Subpart 1 of Amendment 821 (Amendment 8 of the 
amendments submitted to Congress on April 27, 2023), pertaining to 
criminal history.

-----------------------------------------------------------------------

SUMMARY: The Sentencing Commission hereby gives notice of an amendment 
to the policy statement and commentary in the Guidelines Manual that 
provides for a reduction in a defendant's term of imprisonment as a 
result of an amended guideline range. The amendment includes Parts A 
and B, Subpart 1 of Amendment 821 (Amendment 8 of the amendments 
submitted to Congress on April 27, 2023) in the policy statement as an 
amendment that may be available for retroactive application. The 
amendment also provides a special instruction requiring that any order 
granting sentence reductions based on Part A or Part B, Subpart 1 of 
Amendment 821 shall not take effect until February 1, 2024, or later.

DATES: The effective date of this amendment is November 1, 2023. 
However, as a result of the special instruction, any order reducing a 
defendant's term of imprisonment based on the retroactive application 
of Part A or Part B, Subpart 1 of Amendment 821 cannot take effect 
until February 1, 2024, or later.

FOR FURTHER INFORMATION CONTACT: Jennifer Dukes, Senior Public Affairs 
Specialist, (202) 502-4597.

SUPPLEMENTARY INFORMATION: The United States Sentencing Commission is 
an independent agency in the judicial branch of the United States 
Government. The Commission promulgates sentencing guidelines and policy 
statements for federal courts pursuant to 28 U.S.C. 994(a). The 
Commission also periodically reviews and revises previously promulgated 
guidelines pursuant to 28 U.S.C. 994(o) and submits guideline 
amendments to the Congress not later than the first day

[[Page 60535]]

of May each year pursuant to 28 U.S.C. 994(p). Absent action of the 
Congress to the contrary, submitted amendments become effective by 
operation of law on the date specified by the Commission (generally 
November 1 of the year in which the amendments are submitted to 
Congress).
    Section 3582(c)(2) of title 18, United States Code, provides that 
``in the case of a defendant who has been sentenced to a term of 
imprisonment based on a sentencing range that has subsequently been 
lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon 
motion of the defendant or the Director of the Bureau of Prisons, or on 
its own motion, the court may reduce the term of imprisonment, after 
considering the factors set forth in section 3553(a) to the extent that 
they are applicable, if such a reduction is consistent with applicable 
policy statements issued by the Sentencing Commission.'' Pursuant to 28 
U.S.C. 994(u), ``[i]f the Commission reduces the term of imprisonment 
recommended in the guidelines applicable to a particular offense or 
category of offenses, it shall specify in what circumstances and by 
what amount the sentences of prisoners serving terms of imprisonment 
for the offense may be reduced.'' The Commission lists in Sec.  1B1.10 
(Reduction in Term of Imprisonment as a Result of Amended Guideline 
Range (Policy Statement)) the specific guideline amendments that the 
court may apply retroactively under 18 U.S.C. 3582(c)(2).
    On April 27, 2023, the Commission submitted to the Congress 
amendments to the sentencing guidelines, policy statements, official 
commentary, and Statutory Index, which become effective on November 1, 
2023, unless Congress acts to the contrary. See 88 FR 28254 (May 3, 
2023). Parts A and B, Subpart 1 of Amendment 821 (Amendment 8 of the 
amendments submitted to Congress on April 27, 2023), pertaining to 
criminal history, have the effect of lowering guideline ranges for 
certain defendants. The Commission has now promulgated an amendment to 
include Parts A and B, Subpart 1 of Amendment 821 in the listing in 
Sec.  1B1.10(d) as an amendment that may be available for retroactive 
application. The amendment also provides a special instruction 
requiring that any order granting sentence reductions based on Part A 
or Part B, Subpart 1 of Amendment 821 shall not take effect until 
February 1, 2024, or later, and includes commentary explaining and 
clarifying this special instruction.
    The amendment to Sec.  1B1.10 set forth in this notice and the text 
of the amendments submitted to Congress on April 27, 2023 (published in 
88 FR 28254 (May 3, 2023)) are also available on the Commission's 
website at www.ussc.gov.
    Authority: 28 U.S.C. 994(a), (o), (u); USSC Rules of Practice and 
Procedure 2.2, 4.1, 4.1A.

Carlton W. Reeves,
Chair.
    1. Amendment: Section 1B1.10 is amended--
    in subsection (d) by striking ``and 782 (subject to subsection 
(e)(1))'' and inserting ``782 (subject to subsection (e)(1)), and 821 
(parts A and B, subpart 1 only and subject to subsection (e)(2))'';
    and in subsection (e)--
    in the heading, by striking ``Instruction'' and inserting 
``Instructions'';
    and by adding at the end the following new paragraph (2):
    ``(2) The court shall not order a reduced term of imprisonment 
based on Part A or Part B, Subpart 1 of Amendment 821 unless the 
effective date of the court's order is February 1, 2024, or later.''.
    The Commentary to Sec.  1B1.10 captioned ``Application Notes'' is 
amended--
    by redesignating Notes 7 and 8 as Notes 8 and 9, respectively;
    and by inserting after Note 6 the following new Note 7:
    ``7. Application to Amendment 821 (Parts A and B, Subpart 1 
Only).--As specified in subsection (d), the parts of Amendment 821 that 
are covered by this policy statement are Parts A and B, Subpart 1 only, 
subject to the special instruction at subsection (e)(2). Part A amended 
Sec.  4A1.1 (Criminal History Category) to limit the overall criminal 
history impact of ``status points'' (i.e., the additional criminal 
history points given to defendants for the fact of having committed the 
instant offense while under a criminal justice sentence, including 
probation, parole, supervised release, imprisonment, work release, or 
escape status). Part B, Subpart 1 created a new Chapter Four guideline 
at Sec.  4C1.1 (Adjustment for Certain Zero-Point Offenders) to provide 
a decrease of two levels from the offense level determined under 
Chapters Two and Three for defendants who did not receive any criminal 
history points under Chapter Four, Part A and whose instant offense did 
not involve specified aggravating factors.
    The special instruction at subsection (e)(2) delays the effective 
date of orders reducing a defendant's term of imprisonment to a date no 
earlier than February 1, 2024. A reduction based on the retroactive 
application of Part A or Part B, Subpart 1 of Amendment 821 that does 
not comply with the requirement that the order take effect no earlier 
than February 1, 2024, is not consistent with this policy statement and 
therefore is not authorized under 18 U.S.C. 3582(c)(2). Subsection 
(e)(2), however, does not preclude the court from conducting sentence 
reduction proceedings and entering orders under 18 U.S.C. 3582(c)(2) 
and this policy statement before February 1, 2024, provided that any 
order reducing the defendant's term of imprisonment has an effective 
date of February 1, 2024, or later.''.
    Reason for Amendment: The Commission has determined that the 
targeted changes to the criminal history rules made in Parts A and B, 
Subpart 1 of Amendment 821 should be applied retroactively. 
Accordingly, this amendment expands the listing in subsection (d) of 
Sec.  1B1.10 (Reduction in Term of Imprisonment as a Result of Amended 
Guideline Range (Policy Statement)) to implement the directive in 28 
U.S.C. 994(u) with respect to guideline amendments that may be 
considered for retroactive application.
    Part A of Amendment 821 limits the overall criminal history impact 
of ``status points'' (i.e., the additional criminal history points 
given to defendants for the fact of having committed the instant 
offense while under a criminal justice sentence, including probation, 
parole, supervised release, imprisonment, work release, or escape 
status) under Sec.  4A1.1 (Criminal History Category). Part B, Subpart 
1 of Amendment 821 creates a new Chapter Four guideline at Sec.  4C1.1 
(Adjustment for Certain Zero-Point Offenders) providing a decrease of 
two levels from the offense level determined under Chapters Two and 
Three for defendants who did not receive any criminal history points 
under Chapter Four, Part A and whose instant offense did not involve 
specified aggravating factors.
    In making this determination, the Commission considered the 
following factors, among others: (1) the purpose of the amendment; (2) 
the magnitude of the change in the guideline range made by the 
amendment; and (3) the difficulty of applying the amendment 
retroactively. See Sec.  1B1.10, comment. (backg'd.). Applying those 
standards to Amendment 821, the Commission determined that, among other 
factors:
    (1) The purpose of these targeted amendments is to balance the 
Commission's mission of implementing data-driven sentencing policies 
with its duty to craft penalties that reflect the statutory purposes of 
sentencing and to reflect ``advancement in knowledge of

[[Page 60536]]

human behavior as it relates to the criminal justice process.'' See 28 
U.S.C. 991(b). The Commission determined that the policy reasons 
underlying the prospective application of the amendment apply with 
equal force to individuals who are already sentenced.
    In relation to Part A, the Commission determined that accounting 
for status on a more limited basis continues to serve the broader 
purposes of sentencing while also addressing other concerns raised 
regarding the impact of status points. The Commission also determined 
that the changes made by Part A reflect updated research suggesting 
that status points' ability to predict future recidivism--a core 
justification for their use--may be less than the original Commission 
may have expected.
    In implementing Part B, Subpart 1, the Commission sought, in part, 
to fulfill one of its core congressional directives to ensure that 
``the guidelines reflect the general appropriateness of imposing a 
sentence other than imprisonment in cases in which the defendant is a 
first offender who has not been convicted of a crime of violence or an 
otherwise serious offense.'' See 28 U.S.C. 994(j). The Commission 
further determined that the changes made by Part B, Subpart 1 reflect 
its statutory mission to provide for penalties that are ``sufficient, 
but not greater than necessary'' by recognizing that individuals with 
zero criminal history points have considerably lower recidivism rates 
than other sentenced individuals, as well as the fact that courts 
generally depart and vary more often in cases involving individuals 
with zero criminal history points as compared with other individuals.
    (2) The Commission determined that the changes in Parts A and B, 
Subpart 1 of Amendment 821 would meaningfully impact the sentence of 
many currently incarcerated individuals. The Commission estimates that 
11,495 currently incarcerated individuals would have a lower guideline 
range as the result of retroactive application of Part B, Subpart 1 of 
Amendment 821, with an average sentence reduction of 14 months (or 
11.7%). The Commission further estimates that 7,272 currently 
incarcerated individuals would have a lower guideline range as the 
result of retroactive application of Part A of Amendment 821, with an 
average sentence reduction of 15 months (or 17.6%).
    (3) The Commission determined that applying Part A of Amendment 821 
retroactively, requiring the recalculation of criminal history points 
and making the determination as to whether the individual would fall 
within a lower criminal history category, presents minimal difficulty. 
While recognizing that consideration of the exclusionary criteria in 
Part B, Subpart 1 of Amendment 821 could result in an increased 
administrative burden, the Commission concluded that any such burden is 
manageable.
    The Commission concludes that consideration of these factors 
supports a policy determination that a reduced guideline range is 
sufficient to achieve the purposes of sentencing and that, in the sound 
discretion of the court, a reduction in the term of imprisonment may be 
appropriate for previously sentenced, qualified defendants. In making 
this determination, the Commission remains cognizant of the fact that 
public safety will be considered in every case because Sec.  1B1.10 
requires the court, in determining whether and to what extent a 
reduction in the term of imprisonment is warranted, to consider the 
nature and seriousness of the danger to any person or the community 
that may be posed by such a reduction. See Sec.  1B1.10, comment. 
(n.1(B)(ii)).
    At the same time, the Commission also determined that the agencies 
of the federal criminal justice system responsible for reentry into 
society need time to prepare, and to help the released individuals 
prepare, for that reentry. The Commission concluded that a three-month 
delay in the effective date of any orders granting sentence reductions 
under Amendment 821 is needed (1) to give courts adequate time to 
obtain and review the information necessary to make an individualized 
determination in each case of whether a sentence reduction is 
appropriate, (2) to ensure that, to the extent practicable, all 
individuals who are to be released have the opportunity to participate 
in reentry programs and transitional services, such as placement in 
halfway houses, while still in the custody of the Bureau of Prisons, 
which increases their likelihood of successful reentry to society and 
thereby promotes public safety, and (3) to permit those agencies that 
will be responsible for individuals after their release to prepare for 
the increased responsibility.
    Therefore, the Commission added a Special Instruction at subsection 
(e) providing that a reduced term of imprisonment based on retroactive 
application of Amendment 821 shall not be ordered unless the effective 
date of the court's order is February 1, 2024, or later. An application 
note clarifies that this special instruction does not preclude the 
court from conducting sentence reduction proceedings before February 1, 
2024, as long as any order reducing the term of imprisonment has an 
effective date of February 1, 2024, or later.

[FR Doc. 2023-18977 Filed 8-31-23; 8:45 am]
BILLING CODE 2210-40-P