In April, the United States Sentencing Commission adopted several amendments to the United States Sentencing Guidelines that, absent adverse Congressional action, will go into effect on November 1, 2023. One of those amendments stands to greatly benefit many first-time federal offenders.
Notably, the Commission created a new section — Section 4C1.1 — the “Adjustment for Certain Zero-Point Offenders.” If it becomes effective, this section could significantly alter how many first-time federal offenders are sentenced, and it could assist those who have already been sentenced reduce their terms of incarceration.
What is the Zero-Point Adjustment?
Section 4C1.1 provides for a two-level decrease of a defendant’s criminal history level if he or she qualifies for the adjustment. In addition, the amendment modifies the commentary to Section 5C1.1 to recommend that courts consider sentences other than incarceration for qualifiying defendants.
Who Qualifies for the Zero-Point Adjustment?
The adjustment does not apply to every first-time federal offender. To qualify for the adjustment, the defendant must not:
- Have any criminal history points;
- Receive a terrorism adjustment pursuant to §3A1.4;
- Have used violence or credible threats of violence in connection with the offense for which he or she was convicted;
- Engaged in an offense that resulted in death or serious bodily injury;
- Have been convicted of a sex offense;
- Have personally caused substantial financial hardship;
- Possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or caused another participant to do so) in connection with the offense;
- Have been convicted of an offense involving an individual’s civil rights, which is covered by §2H1.1;
- Have received an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
- Have received an upward adjustment under §3B1.1 for playing an aggravating role in the offense and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.
Importantly, it does not appear the new guideline excludes defendants convicted of drug and white-collar offenses.
Encouraging Alternatives to Incarceration:
The amendment also includes new commentary to Section 5C1.1 — Imposition of a Term of Imprisonment — which contains a presumption against imprisonment for defendants who receive the Zero-Point Offender Adjustment and have an applicable guideline range within Zones A or B of the Guidelines’ Sentencing Table. The amended Commentary also encourages courts to impose sentences other than imprisonment for defendants who receive the adjustment whose guidelines range falls outside of Zone A or B, and if the court finds that the guidelines overstate the gravity of the offense because the offense is not a crime of violence or an otherwise serious offense.
Will the Adjustment Apply Retroactively?
On August 31, 2023, the Commission adopted an amendment making the adjustment retroactive to currently incarcerated individuals. However, it delayed the application of the amendment until February 1, 2024, meaning currently incarcerated individuals who qualify for the adjustment may start seeking relief after that date. The United States Department of Justice previously objected to making the adjustment retroactive, although Congress has yet to act to the contrary.
The “Adjustment for Certain Zero-Point Offenders” may significantly alter the landscape for many first-time federal offenders. Additionally, it may provide a lifeline for currently incarcerated individuals who might have previously qualified for the adjustment.