U.S. Sentencing Commission Unanimously Passes 2024 Guidelines Amendments

Earlier this year we reported on the U.S. Sentencing Commission’s proposed 2024 U.S. Sentencing Guidelines Amendments. On April 17, 2024, the Sentencing Commission voted unanimously to adopt every proposed amendment.

The next step in the amendment cycle will be the Commission delivering the amendments to Congress by May 1, 2024. If Congress takes no action to disapprove the changes, these amendments will go into effect on November 1, 2024.

Below is a list of the approved amendments and how they could affect individuals with federal criminal cases.

1. Court will no longer consider acquitted conduct as “relevant conduct.”

This is perhaps the most significant amendment for the 2024 amendment cycle. For decades, the Guidelines have instructed federal district courts to include “all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully cause by the defendant” in determining the applicable Guidelines range. U.S.S.G. § 3B1.3(a)(1)(A). In conspiracy and other related cases, the Guidelines further instruct that a defendant is liable for all acts and omissions that were “(i) within the scope of the jointly undertaken criminal activity, (ii) in furtherance of that criminal activity, and (iii) reasonably foreseeable in connection with that criminal activity.” § 3B1.3(a)(1)(B).

Interpreting the Guidelines’ “relevant conduct” subsection, the United States Supreme Court held in 1997 that relevant conduct includes all conduct that falls within the broad definition above, including conduct a defendant had been acquitted of. United States v. Watts, 519 U.S. 148 (1997). Ever since, district courts have considered uncharged, dismissed, and acquitted conduct as “relevant conduct” under the Guidelines to enhance a federal defendant’s sentence.

This 2024 Amendment will add to U.S.S.G. § 1B1.3 the specific instruction that “relevant conduct does not include conduct for which the defendant was criminally charged and acquitted in federal court, unless such conduct also establishes, in whole or in part, the instant offense of conviction.”

Although the relevant conduct guideline is still extremely broad and still allows for judicial consideration of uncharged or dismissed conduct–or acquitted conduct in the state–this is at least a step in the right direction for meaningful federal criminal justice reform.

2. Rule for Calculating Loss

Most federal white collar cases fall under U.S.S.G. § 2B1.1 when calculating a federal criminal defendant’s Guidelines range. This amendment addresses a circuit split that has appeared regarding how “loss” is determined under the Guidelines.

The Third Circuit Court of Appeals recently held that the Guidelines’ commentary on how to calculate loss was not controlling. United States v. Banks, 55 F.4th 246 (3d Cir. 2022). Under this application, the Third Circuit held that loss could only include actual monetary loss and not “intended loss.”

In passing this amendment, the Sentencing Commission has specifically targeted the Third Circuit’s decision in Banks by moving the definition of “loss” from the Guidelines’ commentary to the actual text of the Guidelines. As such, U.S.S.G. § 2B1.1 will now include the following language:

(A) Loss.–Loss is the greater of actual loss or intended loss.

(B) Gain.–The court shall use the gain that resulted from the offense as an alternative measure of loss only if there is a loss but it reasonably cannot be determined.

(C) For purposes of this guidelines–

(i) “Actual loss” means the reasonably foreseeable pecuniary harm that resulted from the offense.

(ii) “Intended los” (I) means the pecuniary harm that the defendant purposely sought to inflict; and (II) includes intended pecuniary harm that would have been impossible or unlikely to occur (e.g., as in a government sting operation, or an insurance fraud in which the claim exceeded the insured value).

3. Youthful Offenders

This 2024 amendment will amend U.S.S.G. § 5H1.1 to clarify that “[a]ge may be relevant in determining whether a departure [from the Guidelines] is warranted.” It will also include specific language providing for a downward departure in cases where the defendant was “youthful” at the time of the offense or prior offense.

The Sentencing Commission has recognized that the brain continues development until the mid-20s. The Sentencing Commission’s own study found that this continued development in youthful offenders potentially contributes to impulsive behavior. Recognizing this, the amendment instructs federal district courts to take into account a federal criminal defendant’s youth when imposing a sentence and consider a departure below the guidelines. It also recognizes that youthful offenders are more amenable to rehabilitation.

4. Amendment to U.S.S.G. § 4C1.1

Last year, the Sentencing Commission passed and made retroactive Amendment 821 which provided for a two-level departure for “zero-point offenders.” Despite being in effect for only a few months, courts have already found difficulty in construing some of the language in U.S.S.G. § 4C1.1. The Sentencing Commission has voted to amend § 4C1.1 to clarify what constitutes a “sex offense.”

In addition, under the 2023 Guidelines, 4C1.1(b)(10) provides that a person is ineligible for the “zero-point offender” reduction if “the defendant did not receive an adjust under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.” Naturally, this has led to the argument that a defendant may still be eligible for a reduction if he or she only had an aggravating role but was not engaged in a continuing criminal enterprise (or vice versa).

Assuming the 2024 amendment will take effect on November 1st, the Guidelines will now separate the two requirements into different subections:

(10) the defendant did not receive an adjustment under §3B1.1 (Aggravating Role); and

(11) the defendant was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

5. Other Changes

There are other technical and miscellaneous amendments set to take effect in November 2024. Most of these changes won’t have an effect on federal defendants. You can find a complete list of all the adopted 2024 Guidelines amendments here.

Federal Criminal Defense Attorneys

It is vital that a federal criminal defense attorney understand the U.S. Sentencing Guidelines, stays up to date on changes, and is knowledgeable about how different courts interpret the text and commentary included in the Guidelines.

Contact the attorneys at Newland Legal today if you have a federal criminal case and need legal help. The attorneys at Newland Legal are experienced federal criminal defense attorneys with knowledge and experience of the U.S. Sentencing Guidelines and federal criminal procedure.

If you are interested in speaking with a federal criminal defense attorney about your case, call or text us at (303) 948-1489 or email us at info@newlandlegal.com.