Monday, January 11, 2016

Into the Morass: The Bitter with the Sweet in Career-Offender Guideline Amendments

The big news last week was the Sentencing Commission's announcement of several proposed amendments to the "crime of violence" definitions in the career-offender guideline at § 4B1.2. These amendments, if approved by Congress (which they probably will be), will take effect August 1, 2016, and will not be retroactive. As is so often the case, we'll have to take the bitter with the sweet. Let's start with the good news:

The sweet

First, we have to give kudos to the Tenth Circuit for being one of the first (the first?) of the circuit courts to recognize and declare the unconstitutionality of the career-offender residual clause. The Commission's amendments strike that clause from the guideline.

Second, good riddance to the "burglary of a dwelling" predicate. The amendments eliminate burglary as an enumerated predicate offense (though new commentary suggests that a violent burglary may be grounds for an upward departure). 

Third, new commentary to § 4B1.1 suggests that if the career-offender guideline is triggered by prior felony convictions for crimes that are now classified as misdemeanors, a downward departure may be appropriate.

The bitter

First, the amendments add new enumerated predicate offenses. In our last Into the Morass post, we pointed out that the "commentary offenses" listed in the application notes to § 4B1.2 should not trigger the career-offender guideline unless they meet the elements of the force clause, or are included in the enumerated-offenses clause within the guideline itself. This is because the application notes cannot trump the guideline itself. The Commission's amendments answer this dilemma by moving (most of) the commentary offenses into the guideline itself. Note that while "manslaughter" was listed as a commentary offense, the new enumerated offenses include only "voluntary manslaughter." And "extortionate extension of credit" is gone. Extortion remains an enumerated offense, with a commentary definition limiting it to instances involving force or the fear or threat of physical injury.

Second, new commentary defining "forcible sex offense" (now an enumerated offense within the guideline itself) may open the door to more statutory rapes and other sex crimes being classified as crimes of violence.

What hasn't changed

The amendments affect the career-offender guideline and other guidelines that cross-reference the career-offender guideline (§ 2K2.1 felon in possesion,  § 7B1.1 supervised release classification). They do not affect the unlawful reentry guideline at  § 2L1.2.

What can I do for my clients between now and August 16?

These are, for the most part, substantive changes to the guidelines rather than clarifying amendments. There are three ways to give effect to the positive changes: continue any sentencing past the date that the amendments will be effective; get an agreement from the prosecutor that the effect of the changes should apply; or move for a downward variance.

For the negative amendments, because they are substantive, they cannot be applied retroactively. If your sentencing is set past the effective date, argue that application of the punitive amendments violate the ex post facto clause, as held in Peugh v. United States

All in all, these amendments are a clear and significant win for the defense. Burglary of a dwelling forced many of our clients into the career offender category, or elevated the base offense level for a felon-in-possession, adding years to guideline sentences. But no more. That is sweet.

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