US Sentencing Commission Posts 2011 Amendments

New 2011 Amendments from U.S.S.C.

With October upon us, and November first rapidly approaching, PCR Consultants is starting a yearly tradition of breaking down this year’s amendments to the United States Sentencing Guidelines as published by the US Sentencing Commission (U.S.S.C.). Each year, these amendments become active on the first day of November.

To find out how PCR Consultants can help you take advantage of these new amendments, contact us for a free consultation at (480) 382-9287.

Here is a breakdown of the Amendments, what changed, and how they may help or hurt federal defendants, inmates, and those on probation.

The Amendments

Fair Sentencing Act: The Commission re-submitted its changes to crack cocaine sentencing guidelines per the Fair Sentencing Act of 2010. On June 30, 2011 the Commission voted unanimously to make the guidelines changes retroactive. Read more on our Crack Cocaine Sentence Reductions page.

Supervised Release: Learn more about getting early release from federal probation or supervised release with the help of PCR Consultants on our Early Termination Page. This year, four changes were made to Supervised Release and federal Probation:

  1. Deportable Aliens: This change effectively eliminates Supervised Release for defendants who are not required it by law, and are likely to be deported after imprisonment;
  2. Lesser Terms of Supervised Release: The Commission lowered the minimum term of Supervised Release under §2D1.2 from three years to two years from Class A and B felonies, and from 2 years to one year for Class C and D felonies;
  3. Guidance on Imposing Supervised Release Terms: The Commission added criminal history and substance abuse to what the court should consider in determining whether to impose supervised release, and for how long;1
  4. Early Termination of Supervised Release: §5D1.2, has been amended with language which specifically encourages courts to consider early termination of supervised release “in appropriate cases.” An example provided is a substance abuser who successfully completes a treatment program, “thereby reducing the risk to the public from further crimes of the defendant.”

Illegal Reentry: The Commission reduced but didn’t eliminate, the enhancements based on stale convictions or convictions that do not receive criminal history points under chapter 4 of the guidelines. This amendment also provides an upward departure if the new enhancement “does not adequately reflect the extent or seriousness of the conduct underlying the prior conviction.

Mitigating Role: This amendment changed the language of its notes to §3B1.2 (Mitigating Role) to encourage the courts to apply the adjustment therein. This amendment struck (1) from Application Note 3(c)2 and (2) from Application Note 43. This amendment encourages the court that it can, and should, give this adjustment when the only evidence of role rests upon circumstantial evidence and the defendant’s statement of his/her participation.

The US Sentencing Commission also changed the language of §1B1.3 (Relevant Conduct) to help clients who are charged with fraud crimes but benefited little from the overall fraud scheme.

Firearms: Guidelines §2K2.1 and §2M5.2 are changed for the worse. In §2K2.1, the Commission increased penalties for straw purchasers, added a 4-level enhancement (and floor of 18 points) when a defendant left or tried to leave the US while possessing any firearm or ammunition. There is, however, language for downward departure for straw purchasers who were motivated by an intimate or familiar relationship or by threats or fear to commit the offense, where no monetary benefit from the offense exists.

The changes to §2M5.2 raised penalties for cases involving small arms crossing the border, increasing the base offense level from 14 to 26 in cases involving more than two (changed from 10) non-fully automatic small arms.

Fraud: Responding to new health care legislation, §2B1.1 was amended in two ways. First, tiered enhancements for loss amounts of over $1 million were added. Second, a new rule for loss amounts in healthcare fraud cases was added, but is arguable.

Child Support: Defendants convicted of willful failure to pay court-ordered child support are no longer subject to a 2-level enhancement under §2B1.1(b)(8)(C).

Drug Disposal Act: This final amendment broadens the list of people who can be subject to an enhancement for abusing a position of trust or use of a special skill. This is ordinarily used in drug offenses.

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  1. Adding these to the statutory factors set forth in 18 U.S.C. §3583 []
  2. Stating that the court “is not required to find, based solely on the defendant’s bare assertion, that such a role adjustment is warranted” []
  3. The statement: “It is intended that the downward adjustment for minimal participant will be used infrequently []