On November 1, 2024, several important changes to the U.S. Sentencing Guidelines (U.S.S.G.) went into effect. The amendments address four key areas, clarifying certain aspects of the Guidelines and changing how judges should apply the rules in some cases. The new rules have positive and negative consequences for defendants accused of federal crimes.
Previously, courts considered conduct that the defendant was acquitted of in sentencing for another crime. Such “acquitted conduct” was considered “relevant conduct” in determining a defendant’s sentence under the Guidelines. Criticism of this provision resulted in the now amended Guidelines, which expressly state that “[r]elevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court unless such conduct also establishes, in whole or in part, the instant offense of conviction.”
This change provides important protection to defendants. However, judges are still permitted to consider conduct that was uncharged or dismissed.
Under U.S.S.G. § 2B1.1, the amount of loss caused by the defendant’s conduct is used to determine the sentence. However, prior to the amendment, there was a dispute among federal courts over whether “loss” meant “actual monetary loss” only or also included “intended loss.” In the Commentary to the Guidelines, an Application Note stated that loss was the “greater of actual loss or intended loss.” All federal circuit courts except for the Third Circuit followed the Commentary. However, the Third Circuit held the Commentary wasn’t binding.
As a result, the amended Guidelines moved the intended loss language and various definitions from the Commentary to the Sentencing Guidelines text as part of the Notes to make clear that loss is broader than actual loss. Intended loss “(I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).”
This provision is potentially damaging to defendants, as they may face a higher sentence even if they didn’t cause significant actual loss.
The amended Guidelines clarify how courts should treat age as a factor in sentencing. The prior Guidelines stated that “[a]ge (including youth) may be relevant in determining whether a departure is warranted, if considerations based on age, individually or in combination with other offender characteristics, are present to an unusual degree and distinguish the case from the typical cases covered by the guidelines.”
This was changed to account for a better understanding of brain development gained in recent years, particularly that cognitive changes into a person’s 20s may affect culpability for crimes. Accordingly, the language now provides that “[a]ge may be relevant in determining whether a departure is warranted” and downward departures may be warranted where the defendant was youthful at the time of the instant offense or any prior offenses. The broader definition may be helpful to some defendants.
The amended Guidelines resolve a conflict among federal circuit courts involving U.S.S.G. §2K2.1 (Unlawful Receipt, Possession, or Transportation of Firearms or Ammunition; Prohibited Transactions Involving Firearms or Ammunition). Previously, a four-level sentence enhancement was applied when the serial number of a firearm was “altered or obliterated.” However, conflict arose over whether the serial number had to be illegible and what test to apply for legibility.
The new language states that the enhancement applies if “any firearm had a serial number modified in such a way that the original information is rendered illegible or unrecognizable to the unaided eye.” Essentially, the serial number must be rendered illegible or unrecognizable to the naked eye.
Additional amendments were made to the Guidelines to address conflicts between circuits and clarify how sections work together. These include amendments to §2K2.4 (Use of Firearm, Armor-Piercing Ammunition, or Explosive During or in Relation to Certain Crimes) and §4C1.1 (Adjustment for Certain Zero-Point Offenders).
The changes to the Sentencing Guidelines are a mixed bag for defendants. What is most important is to have an experienced lawyer by your side who understands the Guidelines and knows how to make a strong case for a reduced sentence.
If you are facing a criminal matter, contact us for a consultation.