Year of the Dragon: Sentencing Guideline New Year's Cheers & Jeers

What better way to start off the new year than to review some of the big guideline changes that took effect at the end of the year, and some forward looking sentencing commission proposals for changes that could be coming in 2024? We kick off this year with our friend and colleague, guidelines and sentencing stats guru, Mark Allenbaugh.  He’s drinking coke, I’m sipping Don Rico tequila.   IN THIS EPISODE:   Some major changes we gave short-shrift to in previous episodes, including the 3rd point for acceptance of responsibility, and changes to status points related to criminal history, and changes to the “safety valve provision”; The need for aggressive pre-trial litigation, and now without fear of losing the 3rd point; Newly proposed amendment pertaining to “acquitted conduct”; Newly proposed amendment moving “intended loss” into text of guideline, thereby resolving the issue created by Kisor v. Wilkie; Newly proposed amendment related to “criterion 10” of the Zero Point Offender guideline (ZIPPO), and the need to reach out to the commission to oppose this; Doug’s plans to publish his book on mitigation videos in 2024.   CONTACT THE SENTENCING COMMISSION (OR YOUR CONGRESSPEOPLE) ABOUT PROPOSED GUIDELINE AMENDMENTS: We spent a fair amount of time on the proposed changes to the new Zero Point Offender provision, in particular, the Commissions stated desire to amend the guideline to clarify the leader/organizer exclusion.  There is NO EMPIRACAL evidence to support the claim that those who participated in a conspiracy and had an enhanced role in the crime are prone to recidivism!  You can find all proposed amendments here: https://www.ussc.gov/guidelines/amendments/proposed-2024-amendments-federal-sentencing-guidelines For some proposed language to include in your correspondence, this is the gist of our argument: The proposed amendment to criterion 10 to place the “continuing criminal enterprise” language into a separate criterion is not a “technical” amendment.  It would presumably preclude any offender who received an upward adjustment under 3B1.1 from receiving the new downward adjustment under 4C1.1.  The commission prides itself on making data/empiracally based adjustments to the guidelines.  However, the Commission has cited no empirical evidence to support such a broad exclusionary criterion.  Moreover, given the significant litigation that already has ensured regarding both the prospective and retrospective application of 4C1.1, any amendments now will cause further confusion over application of USSG 4C1.1.  As the Commission itself has indicated, criterion 10 (in its current form) is taken from the fourth prong of the safety valve at 18 USC 3553(f)(4).  Courts have interpreted 18 USC 3553(f)(4) to exclude from the safety valve only management-level drug traffickers, i.e., only those engaged in a “continuing series” of drug offenses “from which such person obtains substantial income or resources.” 21 USC 848(c)(2).  Excluding such individuals from receiving the Zero Point Offender adjustment makes sense inasmuch as such offenders are, by definition, recidivists.  However, the Commi