US Sentencing Commission Voted on the 2018 Amendments on April 12, 2018

We are somewhat disappointed.

At today’s Public Hearing of the United States Sentencing Commission, (USSC), the Commission voted to approve certain of the Proposed Amendments. Unfortunately, in terms of reducing the federal prison population and reducing federal sentences overall, the USSC did very little. Specifically, they approved the changes to USSG §3E1.1 making it clear that a defendant being sentenced who makes non-frivolous objections to “Relevant Conduct” enhancements should not jeopardize a defendant’s Acceptance of Responsibility adjustment. This is a positive step and we here at NPSC have worked on many cases where a defendant who made substantive (and legitimate) objections to certain enhancements were threatened with the denial of the 2 or 3-point Acceptance of Responsibility downward adjustment. Additionally, and most significantly, the Commission did not approve a 1 or 2-point reduction for non-violent first-time offenders. However, it did approve a commentary amendment advising that courts should alternatives to incarceration for non-violent first-time offenders who are in Category A or B on the Sentencing Table, meaning those with an Adjusted Guideline Level under 12. In addition, the Commission provided for a 4 level increase for “knowingly” distributing fentanyl as another substance. During the public hearing there was significant debate as to whether to include a mens rea requirement such as “knowingly” and we happy to see that the Commission opted not to include another “strict liability” enhancement. A copy of the 2018 Amendments can be found here. As always, if you have any questions, please feel free to contact NPSC at [email protected] or call 615-696-6153