Amendment 821: Criminal History
Amendment 821 makes three important changes to the criminal history rules, all of which could reduce the guideline range for certain offenders. Because two parts of Amendment 821 (Parts A and B) may reduce the sentencing range of future defendants, the Commission was required to consider retroactivity. This means that judges can extend those reductions to those individuals already incarcerated. In August of 2023, the United States Sentencing Commission voted 4-3 to authorize judges to begin considering petitions for sentence reductions for eligible prisoners beginning February 1, 2024.
Part A: “Status Points” will no longer apply to offenders with less serious criminal histories
Amendment 821 also known as the 2 level reduction amendment has a part A and a part B. Part A of Amendment 821 limits the criminal history impact of “Status Points” at § 4A1.1. Status Points are points added to the base level offense total if the individual committed the current offense “while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status” in certain situations. As amended, the “status points” provision applies only to offenders with more serious criminal histories under the guidelines. This means that even if the current offense was committed while the individual was on probation or pre-trial if they have a total of 6 criminal history points or less, they will not receive additional “Status Points” for having committed the instant offense while under a criminal justice sentence.
Second, the amendment changes U.S.S.G. § 4A1.1(e). For defendants with more serious criminal histories (seven or more criminal history points), the amendment adds one point, rather than two points.
https://www.ussc.gov/sites/default/files/pdf/amendment-process/amendments-in-brief/AIB_821.pdf
Part B: Zero-Point offenders may receive a decrease of two offense levels
Part B, Subpart 1 of Amendment 821 creates a new Category Four guideline at § 4C1.1 decreasing by two the offense levels for defendants who did not receive any criminal history points and whose instant offense did not involve specific aggravating factors.
Part B of this amendment is in response to Congress’ directive to consider the appropriateness of considering other alternatives to incarceration for those less serious offenses. In other words individuals who have no criminal history and no history of violence don’t need the same level of punishment as does an individual with a criminal history or a history of violence.
Accordingly, “zero point offenders” are now defined as individuals with no criminal history points subject to a series of exclusions related to the seriousness of the instant offense of conviction or certain aggravating factors. See U.S.S.G. § 4C.1.1 (Proposed Amendment 821).
https://www.ussc.gov/sites/default/files/pdf/amendment-process/amendments-in-brief/AIB_821.pdf
Part C: Downward departure may be warranted for criminal history reasons in prior marijuana possession sentences
Part C amends § 4A1.3 Commentary to include prior marijuana possession as an example of when a downward departure due to the defendant’s criminal history may be warranted. In other words, Part C now provides that a downward departure may be warranted if the defendant received criminal history points from a sentence for possession of marijuana for personal use (without an intent to sell or distribute).
The Commission’s rationale for this amendment is that many states have reduced or eliminated penalties for marijuana possession but these convictions still impact a federal offender’s criminal history score.
https://www.ussc.gov/sites/default/files/pdf/amendment-process/amendments-in-brief/AIB_821.pdf.
Retroactivity: Parts A and B may apply to currently incarcerated individuals
The Commission has estimated that retroactive application of Parts A and B of Amendment 821 would affect many currently incarcerated individuals. Nearly twelve thousand incarcerated individuals will have a lower sentencing range under Part A. Slightly over seven thousand incarcerated individuals would be eligible for a lower sentencing range based on Part B of Amendment 821.
https://www.ussc.gov/research/data-reports/retroactivity-analyses-and-data-reports
