Amendment 821 Makes Changes To Criminal History Rules

In November of this year, the United States Sentencing Commission adopted amendments to the Federal Sentencing Guidelines. Amendment 821 makes changes to criminal history rules, which could reduce guideline ranges for certain offenders.  One of these amendments concerns “status points.” Status points are those points added to the base offense level if a defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, and work release. Under the new guidelines, status points will no longer apply to offenders with less serious criminal history under U.S.S.G. §4A1.1. Specifically, status points will only be added to the base offense level if a defendant has 7 or more accumulated criminal history points. Instead of receiving two points, though, defendants with 7 or more accumulated criminal history points will only receive one status point to their base offense level. According to a study conducted by the United States Sentencing Commission, over the last five years, status points were applied in 38% of cases, which resulted in moving over 60% of offenders to a higher criminal history category. Importantly, the imposition of status points to a defendant’s base offense level only minimally improved the prediction of the defendant’s likelihood of recidivism—by .2%. This data has served as a basis to reduce penalties for certain offenders.

Amendment 821 also provides for a decrease in offense levels for certain defendants without any criminal history points, or “zero-point offenders.” Under the new guidelines, defendants who did not receive criminal history points and whose instant offense did not involve specific aggravating factors will receive a two-point reduction in their base offense level. Aggravating factors that would disqualify a defendant to receive this reduction include an offense adjustment for terrorism, violence or credible threats of violence in connection with the offense, if the offense resulted in death or serious bodily injury, if the offense was a sex offense or a hate crime, if the offense involved individual rights, if the defendant had an aggravating role or was engaged in a criminal enterprise, if the defendant caused substantial financial hardship, or if the defendant had a dangerous weapon. According to the study conducted by the Commission, zero-point offenders have far less of a chance of recidivism than those with pre-existing criminal history points. One third of the federal sentencing case load is made up of zero-point offenders, and of those individuals, courts only sentenced approximately 39% of them to sentences within their guideline range, citing an overstatement of criminal history.

These amendments will have significant implications for defendants that meet the criteria within the amendment. Importantly, these amendments are retroactive, meaning that those who would have benefited from these provisions if they were sentenced after these guidelines took effect can move for a reduction in sentence based on these new guidelines. There are certain exceptions to this retroactivity rule, and defendants who received substantial downward departures at the time of sentencing may not qualify. If you think you may qualify for a reduction in sentence under these new guidelines, contact our firm.

When under investigation it is important to follow the advice of your attorney and not speak about the alleged crimes over social media. LGR Law, LLC’s federal criminal defense attorneys have the essential skills to protect your legal rights. Should you or a loved one receive any indication that you are a target of a federal investigation, contact Lorraine Gauli-Rufo, and the attorneys at LGR Law immediately. (973) 239-4300,, [email protected]

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