Federal Sentencing Guidelines Zero Criminal History Amendment Will Be Retroactive
The United States Sentencing Commission voted on August 24, 2023 to make the zero criminal history amendment to the Federal Sentencing Guidelines retroactive with a delayed effective date. The Sentencing Commission approved the retroactive application of the amendment, but determined that the amendment would not become retroactive until February 1, 2024. The Sentencing Commission stated that it was delaying the retroactive date of the amendment in order to “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 that will increase the likelihood of successful reentry to society.”
WHAT IS THE ZERO CRIMINAL HISTORY POINT AMENDMENT
The zero criminal history amendment creates a new provision in the Sentencing Guidelines (§ 4C1.1) which reduces the advisory guidelines sentencing range by two levels for defendants with a criminal history score of zero, who also meet the following criteria:
- The defendant did not receive an adjustment under §3A1.4 (Terrorism);
- The defendant did not use violence or credible threats of violence in connection with the offense;
- The offense did not result in death or serious bodily injury;
- The offense is not a sex offense;
- The defendant did not personally cause substantial financial hardship;
- The defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
- The offense is not covered by §2H1.1 (Offenses Involving Individual Rights);
- The defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense).
WHEN IS THE ZERO CRIMINAL HISTORY AMENDMENT EFFECTIVE
The amendment is scheduled to go into effect on November 1, 2023 unless Congress takes action to amend or prevent the enactment of the amendment. At the present, there is no indiction that Congress intends to take action to stop the amendment. This means that the zero criminal history amendment would apply to any defendant who is sentenced after the effective date of November 1, 2023. As noted above, those defendants who were sentenced prior to November 1, 2023, and who would have been eligible for the zero criminal history adjustment would be able to apply for a sentence adjustment starting February 1, 2024.
WHO CAN BENEFIT FROM THE ZERO CRIMINAL HISTORY AMENDMENT
Any person who is a defendant in a Federal criminal case that has not been sentenced as of November 1, 2023 and who meets the criteria listed above will benefit from the amendment. Also, any defendant who has already been sentenced and is currently serving time on their Federal sentence and who would have meet the criteria above at the time they were sentenced can apply for a reduction starting February 1, 2023. The Sentencing Commission estimates that 11,495 individuals who are currently serving time in the Bureau pf Prisons would have a lower guideline range as the result of retroactive application of the zero criminal history amendment. The average reduction in sentence for these individuals would be a reductio of 14 months. For a great number of those eligible for the retroactive application of the provision, it may mean that they are simply done with their sentence and eligible for release.
HOW TO GET A RETROACTIVE ZERO CRIMINAL HISTORY AMENDMENT ADJUSTMENT
If you are presently serving a Federal criminal sentence, and you would have been eligible for the zero criminal history point reduction when you were sentenced if it had been in effect at that time, we encourage you to contact an attorney immediately in order to determine your eligibility and the potential effect on our sentence. An experienced Federal criminal defense attorney can assist you in preparing the appropriate motion, and have it ready to file on the effective date.
THE LAWYERS AT BRADFORD LADNER LLP CAN HELP
William K. Bradford and Amber L. Ladner are experienced Federal criminal defense lawyers. We have assisted hundreds of clients facing serious Federal criminal charges to obtain a favorable outcome in their cases. We actively practice in Federal court on both the trial level and in the Federal appellate courts. If you need assistance in filing a motion for a sentence reduction based on the retroactive zero criminal history amendment, please call us; we would be glad to assist you.
