Sunday, April 17, 2016

Oh guidelines, how did they amend thee? Let me count the ways . . .

Last week the Sentencing Commission passed a variety of guideline amendments that will come into effect on August 1, 2016, unless Congress acts to the contrary.

Compassionate release just got more compassionate (which may not be saying much), with new, broader criteria for release. The amendments also encourage BOP to do its part in requesting release for eligible inmates.

Conditions of probation and supervised release are now clearer. Remember those Tenth Circuit cases rejecting vagueness challenges to standard conditions of release? The Sentencing Commission isn't buying it. Taking its cue from the Seventh Circuit, which has found several standards vague, overbroad, or lacking a required mens rea, the Commission has revised the standard conditions with an eye toward making them "more focused and precise as well as easier for defendants to understand and probation officers to enforce."

The child-pornography guideline is now even harsher---at least in cases involving portrayals of "an infant or toddler," which now get a 4-level bump. On the other hand, the Commission sides with the Seventh and other Circuits over the Tenth and other Circuits in resolving a circuit split over the 2-level file-sharing enhancement. The amendment states that this enhancement only applies if the distribution was "knowingly" done.

The illegal-reentry guideline has (for the most part) done away with enhancements based on prior "crimes of violence," replacing them with enhancements based on the sentence imposed for prior felony convictions. No more categorical quandaries---but will it help your client? This amendment is expected to increase some sentences while decreasing others. You'll want to take a close look before you pick your book for sentencing.

The animal-fighting base-offense level now tops out at 16 instead of 12. This increase was in part a response to nearly 50,000 signatures on a form ASPCA letter from animal lovers---the most public comment on any amendment in the history of the Commission. Query: Do public comments count as "empirical evidence" in support of a guideline amendment?

There are more amendments, and more details about the above amendments, than there is room to write about here. Check them out at the above link, and plan your sentencing strategy accordingly.

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