Federal Sentencing Tips


The U.S. Sentencing Commission Votes for Fundamental Fixes to the Sentencing Guidelines – Part IV

By Alan Ellis and Mark H. Allenbaugh

This is the fourth and final newsletter in a four-part series regarding the April 9, 2015, vote by the U.S. Sentencing Commission to fundamentally fix some portions of the U.S. Sentencing Guidelines. These fixes will become final on November 1, 2015, if Congress does not act to the contrary.

The prior newsletters reviewed Jointly Undertaken Criminal Activity, Mitigating Role, Inflationary Adjustments to the loss and fine tables, Sophisticated Means, Intended Loss, the Number-of-Victims tables, and revisions to calculating loss in securities fraud cases. This newsletter addresses the difference between clarifying and substantive amendments and suggests which amendments may be classified as clarifying and which may be classified as substantive.

Clarifying vs. Substantive Amendments

When imposing a sentence, unless it would violate the ex post facto clause of the U.S. Constitution, a district court “shall use the Guidelines Manual in effect on the date that the defendant is sentenced.” USSG §1B1.11(a), (b)(1). Furthermore, “[t]he Guidelines Manual in effect on a particular date shall be applied in its entirety. The court shall not apply, for example, one guideline section from one edition of the Guidelines Manual and another guideline section from a different edition of the Guidelines Manual.” USSG §1B.11(b)(2). This is the so-called “One Book Rule.”

“However, if a court applies an earlier edition of the Guidelines Manual, the court shall consider subsequent amendments, to the extent that such amendments are clarifying rather than substantive.” Id. Thus, while the One Book rule requires a sentencing court to utilize no more than one edition of the Guidelines Manual at sentencing, it still may look to subsequent amendments of the Guidelines so long as those only function to clarify the Guidelines as opposed to make substantive changes to the Guidelines.

In addition to this prospective use of clarifying amendments, the U.S. Courts of Appeal have uniformly held that clarifying amendments also may, and in fact should, be applied retroactively subject to ex post facto considerations. See, e.g., United States v. DeCarlo, 434 F.3d 447, 458-459 (6th Cir. 2006); United States v. Crudup, 375 F.3d 5, 8 (1st Cir. 2004); United States v. Kim, 193 F.3d 567, 578 (2d Cir. 1999); Burke v. United States, 152 F.3d 1329, 1332 (11th Cir. 1998); United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995); United States v. Smaw, 22 F.3d 330, 333 (D.C. Cir. 1994).

An amendment is clarifying if it “changes nothing concerning the legal effect of the guidelines, but merely clarifies what the Commission deems the guidelines to have already meant.” United States v. Capers, 61 F.3d 1100, 1109 (4th Cir. 1995) (internal quotation marks and citation omitted). As it sometimes is difficult to distinguish between a clarifying and a substantive amendment, courts have identified three factors to be considered when determining whether an amendment clarifies or substantively alters a Guidelines provision: “(1) how the Sentencing Commission characterized the amendment; (2) whether the amendment changes the language of the guideline itself or changes only the commentary for the guideline; and (3) whether the amendment resolves an ambiguity in the original wording of the guideline.” United States v. Monus, 356 F.3d 714, 718 (6th Cir. 2004) (internal quotation marks and citation omitted).

Using these criteria, the amendments regarding Jointly Undertaken Criminal Activity, Intended Loss, and Sophisticated Means likely will be considered by courts as merely clarifying in nature inasmuch as these amendments largely addressed circuit conflicts regarding the application of these portions of the Guidelines, which grew out of some inherent ambiguities in the Guidelines text itself. Furthermore, while some of these amendments made changes to the Guidelines themselves, the bulk of the changes were made to the commentary to the Guidelines.

In contrast, the following amendments likely will be considered substantive: the inflationary adjustment to the loss table and other monetary tables in the Guidelines; the amendment to the Victims Table in USSG §2B1.1; and the excision of the rebuttable presumption in favor of the modified rescissory method for calculating loss in securities fraud cases. These amendments did not resolve circuit conflicts and more importantly, substantively changed the text of the Guidelines.

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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