The United States Sentencing Commission recently adopted amendments to its Guidelines Manual, and they include some noteworthy changes. The proposed amendments were submitted to Congress on April 27, 2023. Absent Congressional action to the contrary, they will become effective on November 1, 2023.
Of note, the proposed amendments include the addition of Section 4C1.1 – the Zero-Point Offender Adjustment. The amendment will significantly impact how some first-time offenders are sentenced, and it could result in a flurry of post-sentencing motions for those already serving time, including many white-collar defendants.
What Is the Zero-Point Offender Adjustment?
In short, the Zero-Point Offender Adjustment, proposed § 4C1.1, reduces the recommended advisory guideline range by two levels for certain defendants with no prior criminal history. In addition, revisions to the § 5C1.1 Commentary advise courts to consider sentences without prison time for defendants who receive the adjustment.
New U.S.S.G. § 4C1.1: Qualifying for the Zero-Point Offender Adjustment
In order to qualify for the two-level reduction, defendants must not have:
- Any prior criminal history points;
- Received a terrorism adjustment under § 3A1.4;
- 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;
- 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.
If any of the above applies to a defendant, the defendant is ineligible for the adjustment. Depending on their circumstances, many white-collar defendants may qualify.
New Commentary in U.S.S.G. § 5C1.1: No Prison Time May Be Appropriate for Qualifying Defendants
In addition to the two-level adjustment provided by § 4C1.1, the new Commentary for § 5C1.1 contains a presumption against imprisonment for defendants who both receive a Zero-Point Offender Adjustment and have an applicable guideline range within Zones A or B. The Commentary advises that for these defendants, “a sentence other than a sentence of imprisonment . . . is generally appropriate.” Further, the proposed Commentary advises courts to consider a sentence with no prison time even for defendants whose guideline range falls outside of Zone A or B, if the defendant received the Zero-Point Offender Adjustment and 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.” (Emphasis added.)
Will It Apply Retroactively?
It is still unclear whether the Zero-Point Offender Adjustment will apply retroactively. The Commission requested public comment on retroactivity of the amendment, and the comment period closed on June 23, 2023. DOJ objected, arguing that retroactive application “would extend far beyond the Commission’s past practice” and be an “immense” burden. Just last month, on July 19, 2023, the Commission held a public hearing on the issue. No decision on retroactivity has yet been issued.
If the Commission applies the Zero-Point Offender Adjustment retroactively, individuals who are imprisoned and would have qualified for the Zero-Point Offender Adjustment at the time of their sentencing would be able to move for a reduced sentence based on the new adjustment. See 18 U.S.C. § 3582(c)(2). According to the Commission’s “Retroactivity Impact Analysis,” a retroactive application of the Zero-Point Offender Adjustment could result in a reduced sentence for over 7,000 individuals in custody with approximately 1,200 of them being eligible for immediate release. In the meantime, defense lawyers have been arguing for sentences that reflect application of the proposed amendments in recognition of possible or probable retroactivity once adopted.
These amended Guidelines may be a lifeline for many white-collar defendants looking to avoid or reduce prison time. The Zero-Point Offender Adjustment would provide certain individuals with no prior criminal history an opportunity to receive a material reduction in the offense level calculated under the advisory Sentencing Guidelines. It also provides many defendants an avenue to argue for a sentence that does not include imprisonment. If the Zero-Point Offender Adjustment is applied retroactively, over 7,000 individuals presently serving sentences of imprisonment may qualify for a reduced sentence, which could result in immediate release for a significant number of them.