Recent Amendment to the U.S. Sentencing Guidelines Allows for More Lenient Sentencing of Nonviolent First-Time Offenders
Earlier this year, the U.S. Sentencing Commission voted to approve several amendments to the U.S. Sentencing Guidelines, including promulgating a new guideline at §4C1.1, entitled Adjustments for Certain Zero-Point Offenders, thus paving the way for more lenient sentences for certain nonviolent, first-time offenders. Late last month, the Commission voted to make these amendments retroactive. Because most white-collar defendants have no criminal history, §4C1.1 is likely to have a significant impact on sentencing in white-collar cases, both going forward and (now that it’s retroactive) for those currently in custody.
Absent Congressional action, §4C1.1 will take effect on November 1, 2023, becoming retroactive on February 1, 2024. As we approach these dates, here is what practitioners and those potentially eligible for the adjustment need to know:
What is the Zero-Point Offender Adjustment?
Section 4C1.1 allows for a two-level reduction to a defendant’s offense level for certain first-time offenders. As a reminder, a defendant’s offense level is one of two variables (along with the defendant’s criminal history category) that determines their advisory guidelines range. The lower the offense level (or criminal history category), the lower the advisory guidelines range.
Who qualifies for the adjustment?
To qualify for the adjustment, a defendant must—
• have no criminal history points;
• not have received a terrorism adjustment under USSG §3A1.4;
• not have used violence or credible threats of violence in connection with the instant offense;
• not be convicted of an offense resulting in death or serious bodily injury;
• not be convicted in the instant case of a sex offense;
• not have personally caused substantial financial hardship (more on this below);
• not have possessed, received, purchased, transported, transferred, sold, or otherwise
disposed of a firearm or other dangerous weapon (or induced someone else to do so)
in connection with the offense;
• not have committed a civil rights offense covered under USSG §2H1.1;
• not have received an adjustment under USSG §3A1.1 for committing a hate crime or USSG §3A1.5 for committing a serious human rights offense; and
• not have received an aggravating role adjustment under USSG §3B1.1 or been
engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
If any of the foregoing apply, the defendant is ineligible for the zero-point offender adjustment.
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