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In a landmark decision, the United States Sentencing Commission (USSC) has voted 4-to-3 in favor of the delayed retroactive application of Amendment 821, which pertains to criminal history. This significant move makes specific inmates eligible for reduced sentences, with the retroactive changes becoming effective from February 1, 2024.

Amendment 821 itself introduces newly created Section 4C1.1 of the U.S. Sentencing Guidelines that goes into effect on November 1, 2023 and will apply to current cases as well as retroactively.

Two-Level Decrease for Zero Point Offenders

Understanding the Amendment 821 Two-Level Decrease for Zero Point Offenders

Amendment 821 introduces a new guideline in Chapter Four at §4C1.1 titled “Adjustment for Certain Zero-Point Offenders.” This guideline offers a two-level decrease from the offense level determined under Chapters Two and Three. It’s applicable to defendants who:

  • Didn’t receive any criminal history points and
  • Whose immediate offense didn’t involve certain aggravating factors.

Most white-collar defendants have no criminal history, so this amendment could lead to reduced sentences for many white-collar crimes. It is also expected to impact a large number of lower-level drug offenses.

Who cannot benefit from Amendment 821’s Two-Level Reduction for Zero Point Offenders?

An individual cannot benefit from Amendment 821 if they: 

  • Had any prior criminal history points;
  • Used violence or credible threats of violence in connection with the offense;
  • Caused death or serious bodily injury because of the offense;
  • Committed a sex offense;
  • Personally caused substantial financial hardship;
  • Received a terrorism adjustment under § 3A1.4;
  • Possessed, received, purchased, transported, transferred, sold, or disposed of a firearm or other dangerous weapon (or induced another person to) in connection with the offense;
  • Committed a civil rights offense covered under § 2H1.1 (Offenses Involving Individual Rights);
  • Committed a hate crime;
  • Received an adjustment under § 3A1.1 (Hate Crime Motivation or Vulnerable Victim), § 3A1.5 (Serious Human Rights Offense), or § 3B1.1 (Aggravating Role); or
  • Engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

status point changes

Status Points Changes in Amendment 821 

“Status Points”

Amendment 821 also specifically targets the impact of providing additional criminal history points for offenders under a criminal justice sentence, commonly known as “status points”.

In the existing Guidelines Manual, an offender is assigned two criminal history points, known as “status points”, if they committed the current offense while under any form of criminal justice sentence. This includes situations where the offender was on probation, parole, supervised release, imprisonment, work release, or even escape status. 

Who Qualifies for the Status Point Adjustment?

This applies to individuals whose sentences included status points, which is an increase in sentencing because at the time of the offense they were serving some other sentence, such as probation or parole.

Changes to the Application of Status Points under 4C1.1

The 2023 amendment aims to limit the impact of these “status points”. The changes are as follows:

  • The “status points” provision will now only apply to offenders with more severe criminal histories under the guidelines.
  • Offenders with less severe criminal histories, specifically those with six or fewer criminal history points, will no longer receive “status points”, even if their current offense was committed while they were under a criminal justice sentence.
  • For offenders who are under a criminal justice sentence and have seven or more criminal history points, they will now be assessed only one additional criminal point, as opposed to the previous two points.

New Commentary in 5C1.1 for Zero Point Offenders

Although most federal cases are resolved through a prison sentence, defendants, this amendment also comes with a presumption against prison time for qualifying defendants. This presumption is found in the commentary to U.S.S.G. § 5C1.1
It provides the presumption against imprisonment for defendants who

  1. Receive the Zero-Point Offender Adjustment AND
  2. Has a recommended guideline range within Zones A or B.

A defendant may even be able to qualify outside of Zones A and B, if

  1. They receive the Zero-Point Offender Adjustment AND
  2. The applicable guideline range overstates the gravity of the offense because the offense of conviction is not a crime of violence or an otherwise serious offense.

The Impact of the Retroactive Application of Amendment 821 

The United States Sentencing Commission’s Impact Analysis from July 2023 sheds light on the potential effects of this retroactive application:

  • 11,495 inmates will have a reduced sentencing range under Part A of Amendment 821, with an average sentence reduction of 11.7%.
  • 7,272 inmates will be eligible for a reduced sentencing range under Part B of Amendment 821, with an average sentence reduction of 17.6%.

A New Era for the United States Sentencing Commission?

The USSC, after achieving a quorum of commissioners for the first time since 2018, has been actively voting on amendments to the federal sentencing guidelines. The retroactivity passed by a margin of one vote and came as a surprise to many. The Commission’s recent evidence-based research indicated that the “status points” might not be as effective in predicting the criminal history score as initially expected. This realization led to the decision to refine the treatment of “status points” and “zero points” under Chapter Four of the Guidelines Manual. Could this mark a new era for the USSC? Only time will tell.  

How to apply for relief

United States Section 3582(c)(2) allows a defendant to file a motion to reduce the term of imprisonment based on changes made by the Sentencing Commission. The sentencing court is permitted, but not required, to reduce the term of imprisonment. §1B1.10. Reduction in Term of Imprisonment as a Result of Amended Guideline Range (Policy Statement) provides this is not a full resentencing.

When can defendants begin receiving relief?

Defendants who are currently incarcerated are officially eligible for reduced sentences beginning on February 1, 2024.

What should you do if the two-level reduction applies to you?

If you believe you are eligible for relief under this amendment, contact an attorney to assist you. The attorneys at Varghese Summersett can be reached at (817) 203-2220.

Varghese Summersett is a premier criminal defense firm based in Fort Worth, Texas. Our attorneys focus exclusively on criminal law and represent clients charged with crimes at both the state and federal level. We handle everything from DWI to capital murder to white collar crime. Collectively, our attorneys bring together more than 100 years of criminal law experience and have tried more than 550 cases before Texas juries. All of our senior attorneys served as former state or federal prosecutors and four are Board Certified in Criminal law, the highest designation an attorney can reach. We are the firm people turn to when the stakes are high and they are facing the biggest problem in their lives. - Contact Varghese at  
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