Federal Sentencing Tips


The U.S. Sentencing Commission Continues to Make Fundamental Fixes to the Sentencing Guidelines

By Alan Ellis and Mark H. Allenbaugh

On April 15, 2016, following last year’s important amendments to relevant conduct, mitigating role and the loss table in the fraud guidelines, the U.S. Sentencing Commission voted to continue to make fundamentally fixes to the Sentencing Guidelines, which have long been in need of repair. These fixes will become final on November 1, 2016, unless in the highly unlikely event Congress acts to the contrary.

During this Amendment Cycle, with respect to matters most pertinent to the white collar practitioner, the Commission addressed needed reform expanding the invocation of compassionate release for elderly and/or seriously ill inmates, addressed a circuit-split regarding the sentencing of child pornography offenders who use of peer-to-peer software to commit their offenses, and significantly modified conditions of probation and supervised release.  While this article focuses only on these proposed amendments, the authors note that the Commission also passed important amendments regarding sentencing for animal fighting offenses in light of new legislation, and amended the guidelines for alien smuggling.  The Commission also undertook a wholesale re-write of USSG §2L1.2, the illegal re-entry guideline, which deserves an article unto itself.

1.              Compassionate Release

Section 3582(c)(1)(A) of Title 18 of the U.S. Code provides that “upon motion of the Director of the Bureau of Prison,” a sentencing court may reduce an inmate’s sentence where it finds that

(i) extraordinary and compelling reasons warrant such a reduction; or

(ii) the defendant is at least 70 years of age, has served at least 30 years in prison, pursuant to a sentence imposed under section 3559(c), for the offense or offenses for which the defendant is currently imprisoned, and a determination has been made by the Director of the Bureau of Prisons that the defendant is not a danger to the safety of any other person or the community, as provided under section 3142(g);

and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission; and

This provision commonly is referred to as “compassionate release.”  With respect to compassionate release, USSG §1B1.13 sets forth the Commission’s policy, which simply copies verbatim 18 U.S.C. § 3582(c)(1)(A).

Now, on the heels of two Department of Justice reports, and a public hearing, the Commission has found it necessary to “broaden the criteria for eligibility, to add guidance to the medical criteria, and to remove other administrative hurdles that limit the availability of compassionate release for otherwise eligible defendants.”  U.S. Sentencing Comm’n, 2016 Amendments to the Sentencing Guidelines, Policy Statements, and Official Commentary 1 (Reader-Friendly Version; Apr. 28, 2016) (“2016 Amendments”) available at http://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-friendly-amendments/20160428_RF.pdf.  Accordingly, the Commission revised the application notes to USSG §1B1.13 to provide, first, that “extraordinary and compelling reasons” encompass medical conditions.  Specifically, extraordinary and compelling reasons for compassionate release exists where a defendant is suffering from a terminal illness that is “a serious and advanced illness with an end of life trajectory.  A specific prognosis of life expectancy . . . is not required.  Examples include metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ diseases, and advanced dementia.”  2016 Amendments at 4.  This amendment thus removes the prognosis of an 18-month life expectancy now contained in the Bureau of Prisons’ Program Statement 5050.49 regarding compassionate release because “it is extremely difficult to determine death within a specific time period” and “is unnecessarily restrictive both in terms of the administrative review and the scope of eligibility for compassionate release applications.”  Id. at 2.

Second, the Commission removed the requirement that the defendant be suffering from a “permanent” physical or medical condition, or one “which conventional treatment promises no substantial improvement.”  Instead, extraordinary and compelling reasons now exists where an inmate is suffering from a “serious,” but not necessarily permanent, physical or medical condition, includes a new provision for “suffering from a serious functional cognitive impairment,” and keeps intact the provision for “experiencing deteriorating physical or mental health because of the aging process.”  Id. at 4.  Finally, these conditions need only be conditions “from which [the inmate] is not expected to recover.”  Id.

Third, the Commission added a consideration for the age of the defendant.  If the defendant is at least 65 years old, is “experiencing a serious deterioration in physical or mental health because of the aging process,” and “has served at least 10 years or 75 percent of his or her term of imprisonment, whichever is less,” the defendant should be considered for compassionate release.  This amendment considerably relaxes the current age requirement at 18 U.S.C. § 3582(c)(1)(A)(ii) that a defendant be at least 70 years old and have served “at least 30 years in prison” in order to qualify for compassionate release.  While the amendment “adds a limitation that the defendant must be experiencing seriously deteriorating health because of the aging process,” the Commission nonetheless “expects that the broadening of the medical conditions categories . . . will lead to increased eligibility for inmates who suffered from certain conditions or impairments, and who experience a diminished ability to provide self-care in prison, regardless of age.”  2016 Amendments at 2.

Fourth, the Commission expanded the family circumstances scenario to include the death or incapacitation of the “caregiver” of the defendant’s minor child or children, where formerly the circumstance was limited to an actual family member that cared for the children.  Id. at 4.  The Commission also added to family circumstances the “incapacitation of the defendant’s spouse or registered partner when the defendant would be the only available caregiver” for that person.  Id.

Fifth, the Commission added as Application Note 2 that “an extraordinary and compelling reason need not have been unforeseen at the time of the sentencing in order to warrant a reduction in the term of imprisonment” for compassionate release.  Id.  Indeed, the “the fact that an extraordinary and compelling reason reasonably could have been known or anticipated by the sentencing court does not preclude consideration for a reduction under this policy statement.”  Id.

Finally, the Commission added at Application Note 4 that it “encourages the Director of the bureau of Prisons to file such a motion if the defendant meets any of the circumstances set forth in Application Note 1.”  Indeed, the Commission left in the catch-all provision that the Director of the Bureau of Prisons may find extraordinary and compelling circumstances exist that otherwise were not listed in the now-amended application note.  The Commission added this specific, permanent note of encouragement to the Director inasmuch as it had found that there were “inefficiencies that exist within the Bureau of Prisons’ administrative review of compassionate release applications, which can delay or deny release, even in cases where the applicant appears to meet the criteria for eligibility.”  Id. at 3.

To be sure, discretion to move for compassionate release remains, by statute, with the Director of the Bureau of Prisons.  As the Commission notes, “[t]he Commission’s policy statement is not legally binding on the Bureau of Prisons and does not confer any rights on the defendant, but the new commentary is intended to encourage the Director of the Bureau of Prisons to exercise his or her authority to file a motion under section 3582(c)(1)(A) when the criteria in this policy statement are met.”  Id.

2.       Child Pornography: Vulnerable Victim and Peer-to-Peer File Sharing Software

The Commission resolved a circuit split between the Fifth and Ninth Circuits, and the Fourth regarding whether in cases applying the two-level enhancement for depictions of sadistic or masochistic conduct, the two-level vulnerable victim enhancement also could be applied.  Additionally, the Commission resolved a circuit split regarding whether an enhancement for distribution requires a finding that the defendant knowingly used peer-to-peer file sharing software during the offense of conviction.

(a).       The Vulnerable Victim Enhancement Now Includes an Age-Related Component

In United States v. Jenkins, 712 F.3d 209, 214 (5th Cir. 2013), and United States v. Wright, 373 F.3d 935, 943 (9th Cir. 2004), the Fifth and Ninth Circuits held it is permissible to apply both the two-level enhancement for portrayals of sadistic or masochistic conduct (see USSG §2G2.1(b)(4); USSG §2G2.2(b)(4)) and the two-level vulnerable victim enhancement at USSG §3A1.1(b)(1), which applies where a victim “is unusually vulnerable due to age.”   These circuits reasoned that certain graphic depictions of the extremely young, i.e., infants and toddlers, constituted sadistic content per se.  Furthermore, due to the victims’ extreme youth, they necessarily were especially vulnerable.  Accordingly, both enhancements could be applied simultaneously inasmuch as they arguably captured distinct facets of harm.

The Fourth Circuit disagreed and held that if the sadistic or masochistic enhancement applies, then the vulnerable victim enhancement could not.  See United States v. Dowell, 771 F.3d 162, 175 (4th Cir. 2014).   The Fourth Circuit reasoned that if the extreme youth of a victim is a consideration for applying the sadistic or masochistic enhancement, then age could not also serve as a basis for application of the vulnerable victim enhancement.  See id.

The Commission resolved the split by amending the sadistic or masochistic enhancement to expressly include “an infant or toddler” provision.  Thus, the enhancements at 2G2.1(b)(4) and 2G2.2(b)(4) now reads “If the offense involved material that portrays (A) sadistic or masochistic conduct or other depictions of violence; or (B) an infant or toddler, increase by 4 levels.” (Emphasis added).  Furthermore, a new application note 4 for both guidelines now expressly provides that “If subsection (b)(4)(B) applies, do not apply §3A1.1(b).”  In other words, the Commission resolved in favor of the Fourth Circuit’s reading, effectively overruling the contrary holdings in the Fifth and Ninth circuits.  To be sure, the other age-related enhancements still may apply.  See USSG §2G2.1(b)(1)(adding four levels of victim under 12, two years if between 12 and 16); USSG §2G2.2(b)(2)(adding two levels if victim under 12).


(b).      Distribution Now Requires Knowing Engagement

Motivating this amendment was the Commission’s finding that “[t]he circuits have reached different conclusions regarding the mental state required for application of the 2-level enhancement for ‘generic’ distribution as compared to the 5-level enhancement for distribution not for pecuniary gain.  The circuit conflict involving these two enhancements have arisen frequently, although not exclusively, in cases involving the use of peer-to-peer file-sharing programs or networks.”  2016 Amendments at 10.  And such peer-to-peer file sharing programs or networks are not as uniform in their operation as one might think.

According to the Commission, “[t]he Fifth, Tenth, and Eleventh Circuits have held that the 2-level distribution enhancement applies if the defendant used a file-sharing program, regardless of whether the defendant did so purposefully, knowingly, or negligently.”  See id. at 11 (citing United States v. Baker, 742 F.3d 618, 621 (5th Cir. 2014); United States v. Ray, 704 F.3d 1307, 1312 (10th Cir. 2013); United States v. Creel, 783 F.3d 1357, 1360 (11th Cir. 2015). In contrast, “[t]he Second, Fourth, and Seventh Circuits have held that the 2-level distribution enhancement requires a showing that the defendant knew of the file-sharing properties of the program.”  See 2016 Amendments at 11 (citing United States v. Baldwin, 743 F.3d 357, 361 (2d Cir. 2015) (requiring knowledge); United States v. Robinson, 714 F.3d 466, 468 (7th Cir. 2013) (knowledge); United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009) (knowledge or reckless disregard).

The Commission adopted the approach of the Second, Fourth and Seventh Circuits so that now, in order for the distribution enhancement to apply, there must be a showing that “the defendant knowingly engaged in distribution.” See 2016 Amendments at 11. The distribution enhancements at USSG §2G2.1(b)(3) and USSG §2G2.2(b)(3)(F) now require that the “defendant knowingly engaged in distribution.”  (Emphasis added).

While the Commission did not address it in its reasons for the amendments, this resolution in favor of knowing engagement also is consistent with the manner in which peer-to-peer software platforms operate—all are not equal, and their actual operation sometimes can be overlooked even by experts.  For example, in United States v. Vallejos, 742 F.3d 902 (9th Cir. 2014), the Ninth Circuit held that “the knowing use of a file-sharing program to download child pornography involves not merely the receipt of illicit material, but also the reciprocal distribution of it.” Id. at 908.  Accordingly, “a two-level distribution enhancement under U.S.S.G. § 2G2.2(b)(3)(F)” is warranted where a defendant “used a file-sharing program to download child pornography that, whether knowingly or unknowingly, allowed others access to those files.”  Id. (emphasis added).  In Vallejos, the relevant file-sharing program was LimeWire, id. at 904, which is materially different in its operation than, say, BitTorrent, another popular file-sharing platform.

BitTorrent, however and unlike LimeWire, does not distribute files, but rather only file segments, and only simultaneously with the actual download. As one district court judge has observed:

Mere possession of child pornography on a computer on which a P2P [peer-to-peer] application has been installed, or even using a P2P application to download child pornography, is not enough. Although a defendant may have used a P2P application to download the pornographic files, it does not always follow that he made those files available for upload to other users.

Indeed, not all P2P applications operate in the same fashion. Some applications, for instance, LimeWire, allow users to select not only what folders they want to make available for uploading, but also permit users to restrict the universe of files they are willing to make available for upload to certain types of file extensions (e.g., a user can share the folder “Pics,” but only allow harmless .GIF and .JPG image files to be uploaded from the folder – not movie files involving child pornography which have different extensions such as .MOV or .AVI that happen to also be stored in the same folder). . . . Other P2P applications, such as . . . BitTorrent, actually begin uploading a file as soon as a user starts downloading it from someone else – even before the download is complete. In short, the specific type of P2P application installed on a defendant’s computer, and what settings are in place within that P2P application, are critical to the determination of whether a defendant’s Guideline sentence should be enhanced pursuant to § 2G2.2(b)(3)(F).


United States v. Handy, 2009 U.S. Dist. LEXIS 6471, *5-8 (M.D. Fla. Jan. 21, 2009) (citations omitted, emphasis added).

Thus, not only does the amendment resolve a circuit split, it also serendipitously resolves an epistemic problem that otherwise has not been fully addressed by the circuits, namely, the many different and complicated ways in which peer-to-peer file sharing software functions, which often is above the ken not only of laypersons, but experts too.  The knowing engagement requirement thus better ensures appropriate enhancements for those that in fact are more culpable.

3.         Conditions of Probation and Supervised Release

Finally, following up on its multi-year review of probation and supervised release, and in light of successful legal challenges to various standard terms of probation and supervised release that “are vaguely worded, pose constitutional concerns, or have been categorized as ‘standard’ conditions in a manner that has led to their improper imposition upon particular offenders,” the Commission made several changes substantive changes to the standard conditions and “special” conditions of probation (USSG §5B1.3) and supervised release (USSG §5D1.3).  See 2016 Amendments at 41.

Some of the more pertinent changes are as follows:

– The condition to remain in the judicial district now carries a scienter requirement and reads “The defendant shall not knowingly leave the federal judicial district where he or she is authorized to reside without first getting permission from the court or the probation officer.”  2016 Amendments at 54 (revised USSG §5D1.3, comment. (n.3)(emphasis added)).  The Commission found that this condition in its current iteration could be unfairly applied to defendants who unknowingly move between districts.  See id. at 42.

– The condition that defendants “answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer” split the requirements to answer truthfully and follow instructions into separate conditions.  Most pertinently, however, the Commission now has added commentary that if the defendant exercises his Fifth Amendment right to remain silent when questioned by a probation officer, that exercising of his constitutional right to remain silent cannot be said to be a violation of the condition to answer truthfully.  See id. These changes addressed such concerns set forth in United States v. Kappes, 782 F.3d 828, 848 (7th Cir. 2015) and United States v. Saechao, 418 F.3d 1073, 1081 (9th Cir. 2005).

– Defendants on probation or supervised release must now work at least 30 hours a week, give 10 days’ notice before moving or changing employment (or if not possible within 72 hours of the change), and allow probation officers, during location visits, to confiscate any items “prohibited by the defendant’s terms of release.”  2016 Amendments at 43.

– Finally, the Commission clarified conditions relating to a probation officer’s duty to “notify others of risks the defendant may pose based on his or her personal history or characteristics,” id. at 44, and made clarifications and amendments to the now-special condition regarding support of defendants in light of concerns over clarity raised by the Seventh Circuit in United States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) and United States v. Thompson, 777 F.3d 368, 379-80 (7th Cir. 2015).



The Commission is to be applauded for its continued, progressive approach to the sentencing guidelines.  The Commission’s express encouragement of the BOP to move more often for compassionate release is most welcomed, as are the steps to clarify the standard conditions of probation and supervised release.  Most importantly, the trend toward including scienter requirements in the guidelines to more accurately account for the culpability of the defendant—as opposed to simply assessing the serious of the offense (often at the expense of measures of culpability)—signals a more balanced, and indeed fair, approach toward sentencing.  The authors hope this trend continues.


About Alan Ellis
Alan Ellis is a criminal defense lawyer with offices in San Francisco and New York, with 50 years of experience as a practicing lawyer, law professor and federal law clerk. He is a nationally recognized authority in the fields of federal plea bargaining, sentencing, prison matters, appeals, habeas corpus 2255 motions and international criminal law.

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