November 1, 2023 is Quickly Approaching who Qualifies for Amendment 821.

[Although it should be noted that the Amendment does not go into effect until February 1, 2024].

Many individuals have inquired about the eligibility criteria for the zero history points deduction outlined in Amendment 821. After some thorough investigation, I managed to uncover language that the Sentencing Commission incorporated into the initial draft of the Amendment in April 2023. This modification appears to have arisen due to public pressure to exclude individuals convicted of sex offenses, firearm-related offenses, and violent crimes, as evidenced by the public comments I have reviewed. It is essential to note that these exclusions are specifically relevant to the zero history points reduction (Part B) of the amendment and do not extend to the status points (Part A).

** Important Note: Amendment 821 introduces two retroactive changes.

Part A of Amendment 821 restricts the overall impact of "status points" on criminal history (i.e., the additional points assigned to defendants due to committing the current offense while under a criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status) as outlined in §4A1.1 (Criminal History Category). Part B, Subpart 1 of Amendment 821 establishes a new guideline in Chapter Four at §4C1.1 (Adjustment for Certain Zero-Point Offenders). This guideline grants a reduction of two levels from the offense level determined in Chapters Two and Three for defendants who have not received any criminal history points under Chapter Four, Part A, and whose current offense does not involve specific aggravating factors..

While the U.S. Sentencing Commission retroactively applied the zero history points aspect of Amendment 821 it also instituted exclusions that affect a significant number of individuals. In general, anyone convicted of a violent crime, a sex offense, a firearm use offense under 924(c), or another serious offense will not benefit from Amendment 821.

In simpler terms, if you have a white-collar offense and have maintained a clean record, this part of the Amendment will not have any impact on your situation. Importantly, these exclusions appear to only apply to the zero history points component of Amendment 821 and not the "Status" points component, which is the part that adjusts sentences for individuals on probation at the time of their current offense. Below is the complete text of the new Guideline 4C1.1 pertaining to zero history points:

U.S.S.G. § 4C1.1. Adjustment for Certain Zero-Point Offenders

(a) ADJUSTMENT.—If the defendant meets 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;

... decrease the offense level determined under Chapters Two and Three by 2 levels.

(b) DEFINITIONS AND ADDITIONAL CONSIDERATIONS.—

(1) “Dangerous weapon,” “firearm,” “offense,” and “serious bodily injury” have the meaning given those terms in the Commentary to §1B1.1 (Application Instructions).

(2) “Sex offense” means (A) an offense, perpetrated against a minor, under (i) chapter 109A of title 18, United States Code; (ii) chapter 110 of title 18, not including a record keeping offense; (iii) chapter 117 of title 18, not including transmitting  information about a minor or filing a factual statement about an alien individual; or (iv) 18 U.S.C. § 1591; or (B) an attempt or a conspiracy to commit any offense described in subparagraphs (A)(i) through (iv) of this definition.

(3) In determining whether the defendant's acts or omissions resulted in “substantial financial hardship” to a victim, the court shall consider, among other things, the non-exhaustive list of factors provided in Application Note 4(F) of the Commentary to § 2B1.1 (Theft, Property Destruction, and Fraud).

Commentary Application Notes:

1. Application of Subsection (a)(6).—The application of subsection (a)(6) is to be determined independently of the application of subsection (b)(2) of §2B1.1 (Theft, Property Destruction, and Fraud).

2. Upward Departure.—An upward departure may be warranted if an adjustment under this guideline substantially under-represents the seriousness of the defendant's criminal history. For example, an upward departure may be warranted if the defendant has a prior conviction or other comparable judicial disposition for an offense that involved violence or credible threats of violence.

In essence, the reductions are not automatic.  Let our Team assist you in crafting the proper argument to present on your clients behalf.

Order a copy of the Sentencing Commissions Recommendations or any other document related to your case.  We will assure the document gets delivered to the BOP or proper facility.

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