What does it mean to make an amendment retroactive?

When the Commission amends the sentencing guidelines in a way that reduces sentencing ranges, the Commission must consider whether to make that change applicable to people who have already been sentenced and are currently imprisoned.

In the instance of Parts A and B of the 2023 Criminal History Amendment, the Commission has determined that some people who have already been sentenced – and are currently serving prison sentences – are eligible to apply for retroactive application of the new guideline range.

If an incarcerated person is eligible, a district judge will review the case to decide whether to reduce their sentence.

Related Materials

• Primer on Retroactive Guideline Amendments

Who is eligible for retroactive application?

There are two parts of the 2023 Criminal History Amendment that an individual may be eligible under:

• Part A of the amendment decreases “Status Points” by one point for individuals with seven or more criminal history points and eliminates them for individuals with six or less criminal history points. Individuals who received Status Points in their criminal history calculation are eligible for this retroactive reduction.
  
  There are no eligibility limitations under this part of the amendment based on crime type, violence, or weapons but these are factors a court may consider in determining whether to grant a sentence reduction.
   
• Supbart 1 of Part B creates a new §4C1.1 guideline that provides a decrease of two offense levels for “Zero-Point Offenders” (no criminal history points) whose offense did not involve specific aggravating factors.
  
  In order to qualify for a sentence reduction under subpart 1 of Part B, the individual must meet all of the following criteria:

1. the defendant did not receive any criminal history points from Chapter Four, Part A;
2. the defendant did not receive an adjustment under §3A1.4 (Terrorism);
3. the defendant did not use violence or credible threats of violence in connection with the offense;
4. the offense did not result in death or serious bodily injury;
5. the instant offense of conviction is not a sex offense;
6. the defendant did not personally cause substantial financial hardship;
7. the defendant did not possess, receive, purchase, transport, transfer, sell, or otherwise dispose of a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
8. the instant offense of conviction is not covered by §2H1.1 (Offenses Involving Individual Rights);
9. the defendant did not receive an adjustment under §3A1.1 (Hate Crime Motivation or Vulnerable Victim) or §3A1.5 (Serious Human Rights Offense); and
10. the defendant did not receive an adjustment under §3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848.

Those individuals who are already scheduled to be released before February 1, 2024 will not be able to receive a reduction in their sentences.

Related Materials

• Official Text of 2023 Amendments

How many individuals are eligible for the reduction?

The Commission estimates that approximately 11,500 are eligible to seek a reduction in their current sentence pursuant to retroactivity of Part A of the 2023 Criminal History Amendment.

The Commission estimates that approximately 7,300 are eligible to seek a reduction in their current sentence pursuant to retroactivity of Subpart 1 of Part B of the 2023 Criminal History Amendment.

Related Materials

• Retroactivity Impact Analysis
• Comparison to Other Retroactive Amendments

Will all eligible individuals automatically receive a reduction?

No one will automatically receive a sentence reduction.

In order to be eligible for a sentence reduction, an individual must be serving a term of imprisonment, the guideline range applicable to the individual must have been lowered as a result of Parts A or B of the 2023 Criminal History Amendment, and the individual must not already be scheduled to be released prior to February 1, 2024.

If an individual’s original sentence was below the new, reduced guideline, they likely will not be entitled to a further reduction unless the original sentence was based on substantial assistance to the government.

If an individual is eligible for a reduction, a district court judge will review the case and decide whether a sentence reduction is appropriate.

What does the judge consider when deciding whether to grant a reduction?

The judge will consider all of the factors that a judge considers at an initial sentencing in determining whether a reduction in the defendant's term of imprisonment is warranted and the extent of any reduction. This means factors like the nature and circumstances of the offense, the characteristics of the individual, public safety, deterrence, and the sentencing guidelines will all be considered. In a judge’s review of a motion for a reduction, there will likely be explicit attention to public safety, and this analysis will likely also include review of the individual’s record while in prison.

How do I make a motion for a reduced sentence?

Pursuant to 18 U.S.C. § 3582(c), upon motion of the defendant or the Director of the Bureau of Prisons, or upon the court’s own motion, the court may reduce the term of imprisonment of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). The court may grant such a motion, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.

If the 2023 Criminal History Amendment and its retroactive application go into effect, judges may consider these motions beginning November 1, 2023. The Commission does not comment on individual cases nor can it provide legal advice. For legal advice on how to file a motion for a sentence reduction, you may wish to contact an attorney.

Those who request a sentencing reduction do not have a right to a hearing. Many requests will be resolved based on the written materials that are filed.

Is public safety a consideration in the court’s review of these cases?

Yes. The sentencing guidelines require the court to consider the nature and seriousness of the danger to any person or the community that may be posed by a reduction in an individual’s term of imprisonment. Courts can consider an individual’s prison record.

What is the projected average sentence reduction for eligible individuals?

The Commission projects judges would be able to reduce sentences for eligible individuals under Part A by an average of 11.7%. The average sentence for eligible individuals could drop from 120 months to 106 months (average reduction of 14 months).

The Commission projects judges would be able to reduce sentences for eligible individuals under Subpart 1 of Part B by an average of 17.6%. The average sentence for eligible individuals could drop from 85 months to 70 months (average reduction of 15 months).

• Related Materials


• Retroactivity Impact Analysis

Are there any limitations on the extent of the reduction a court can grant?

Yes. The court is not permitted to reduce the individual’s term of imprisonment to a term that is less than the bottom of the guideline range that would have applied if the 2023 Criminal History Amendment were in effect when the individual was sentenced.

The only exception is if the individual received a downward departure pursuant to a government motion based on substantial assistance provided to the government. Courts are not otherwise entitled to sentence below the reduced guideline range.

What happens to the people who could be released between November 1, 2023 and February 1, 2024?

The Commission has determined that no one will be released based on retroactive application of the 2023 Criminal History Amendment prior to February 1, 2024. They made this decision in order to allow for careful consideration by courts, transitional services for all released individuals including transition through a halfway house or home confinement where appropriate, and preparation by probation officers to effectively supervise released individuals – all of which will promote public safety and successful reentry. This means that some individuals who would otherwise be eligible but who are already scheduled to be released before February 1, 2024, will not be able to seek a reduction and will instead be released after serving their full sentences.

Are retroactive sentence reductions the same as "Compassionate Release?"

No. Retroactivity and Compassionate Release are governed by separate statutes and guidelines that carry different procedural requirements. See 18 U.S.C. § 3582(c)(2) and USSG §1B1.10 for more information on retroactive sentence reductions. See 18 U.S.C. § 3582(c)(1)(A) and USSG §1B1.13 for more information on compassionate release.