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Updates to Federal Sentencing Guidelines

The 2023 amendments to the Federal Sentencing Guidelines included a wide range of changes including some that will have a substantial impact on the lives of many defendants and federal inmates. The Sentencing Commission also implemented many technical adjustments that are beyond the scope of this brief article. For our purposes, we want to highlight the amended rules that are of primary interest to our clients. 


Acquitted Conduct Not To Be Considered For Sentencing 


One of the most significant changes adopted in the 2023 amendments of the Sentencing Guidelines is the provision that prohibits the federal sentencing judge from considering prior “acquitted conduct” when imposing a sentence for the current offense unless the conduct was admitted by the defendant during a plea colloquy or was found to be established beyond a reasonable doubt by a judge in the prior case.  


The significance of this new provision is difficult to overstate because the use of acquitted conduct to enhance sentences has been a source of great debate and protest by the defense bar for many years. Now, if a federal judge wishes to use acquitted conduct as a factor in a new sentence decision, the judge must state on the record what permissible grounds entitle them to deviate from the recommendation not to use such information in sentencing. 


Expansion Of The Safety Valve Provision 


Included in the sentencing guidelines is a provision that is referred to as the “safety valve.” The safety valve provision empowers a federal trial judge to depart downward from a minimum mandatory sentence for convicted defendants of certain nonviolent drug offenses and who fit five criteria.  


The amended safety valve is now expanded to include not only defendants convicted in maritime offenses, but now includes defendants who do not have more than 4 criminal history points. Notably, the criminal history offenses that will be counted exclude those for what are known as 1-point criminal history offenses.  


(1-point criminal history offenses include those for which a defendant was previously sentenced to fines, and/or less than 60 days probation, suspended sentences, or deferred sentences.) 


The amended safety valve also includes those who do not have either a prior 3-point offense or a 2-point offense in their criminal history. A 3-point offense is one for which a sentence of more than 13 months was imposed, and a 2-point offense includes those for which a sentence of greater than 60 days, but less than 13 months was imposed. 


Enhanced Sentences For Fentanyl-Laced Fake Drug Convictions 


Fentanyl-related deaths have increased at such a rapid pace and throughout the entire country over the past several years. Many of these deaths were the result of fentanyl being added to a pill that the user believed to be conventionally manufactured pharmaceutical. These fake pills pretending to be other drugs are made by pill factories in such a way that they mimic the appearance of the familiar pill.  


The new amendment to the sentencing guidelines provides a 2-level enhancement for any defendant convicted of an offense in which they represented or marketed as a “legitimately manufactured drug” a mixture or substance containing fentanyl or a chemically similar compound, and it is proven that they “acted with willful blindness or conscious avoidance of that fact. 


Straw Purchasers Of Firearms 


The federal law prohibits the sale of firearms through “straw purchasers.” These are sales of firearms to a person who is legally permitted to purchase a gun but who is buying the gun on behalf of someone who is legally barred from purchasing or possessing the gun. While many of these straw purchases are carried out by people who do so regularly for the purpose of obtaining firearms for those to whom the sale is illegal, other straw purchasers are less culpable due to their lack of prior criminal history. 


The new sentencing guidelines in 2023 include a 2-level reduction for straw purchasers with only 1 criminal prior point, that is someone whose prior criminal history involves only a less than 60-day sentence. 


Ghost Guns 


As technology advances faster than the law can, the recent development of 3-D printed guns and gun parts as well as other forms of firearm production created a population of illegal guns which bear no serial number. Because they are unnumbered, their place of manufacture and their movement throughout the country is impossible to trace. 


In the past, serial numbers on firearms were sometimes obliterated to prevent tracing. Now, they can be manufactured without serial numbers.  


The new amendment to the sentencing guideline provides a 4-level enhancement for a convicted defendant if they knew that the offense involved a gun that was not marked with a serial number or when they were willfully blind or consciously avoided knowing about the absence of a gun’s serial number. 


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