OK, here’s my second post on the annual amendments to the Federal Sentencing Guidelines, rules that govern imposition of a criminal sentence in all federal courts from Alanta to Alaska, from Maine to Moultrie (way down in South GA, look it up if you’re not familiar with it). There are two good defense-friendly amendments I will mention, but first, a little more history (poor readers, you know my inclinations).
Over the past 30 years, there have been a number of trends we see in these yearly Guideline amendments. For the first 15-20 years, virtually all such amendments resulted in harsher sentences. Then, when Congress and the public began finally listening to those of us hollering about how the United States had turned into the country that incarcerates the largest percentage of its population, the rules slowly began to soften. It also helped when fiscal hawks joined the “defense” side of the argument, pointing to the millions of dollars wasted when locking up low-level offenders. The past 10-15 years have included a number of amendments that actually reduce or make sentences less harsh than earlier versions of the Guidelines. The 2018 amendments are more down the middle, a few that jack up sentences (for newer offenses like dealing fentanyl or designer drugs) and others help to soften the blow for many of my clients. Today, I want to discuss two defense-friendly changes effective 11-1-18.
First, there is a change concerning the “acceptance of responsibility” rules, found at USSG §3E1.1. Remember that a defendant can earn up to 3 points “off” the scoring rules when he or she “accepts responsibility”, which generally means pleading guilty and doing so early enough so that the prosecutor did not have to actually do some work preparing for trial. However, experienced readers know about Presentence Reports, defense objections, and the all-important federal sentencing hearing where arguments on each side are presented to the Judge, whose rulings on contested issues can have a huge impact on the sentencing “range” and therefore the ultimate sentence. One of the biggest issues is often the scope of “relevant conduct”, meaning how much stuff done by other people will the Defendant in court be held accountable for? Over the years, some prosecutors and truly mean judges took the position that a Defendant who fights against relevant conduct can lose the 3-point reduction because that Defendant has not shown he or she is truly accepting responsibility.