How Are Retroactive Sentence Reductions Calculated Under Amendment 821?

On August 24th, 2023, the United States Sentencing Commission voted to allow delayed retroactive application of Amendment 821 relating to criminal history calculations. This means that starting on February 1st, 2024, certain federal prisoners could become eligible for reduced sentences under the amendment.

Amendment 821 is a big deal for many inmates, and has major implications for the criminal justice system. Let’s break down exactly what it changes, who can get relief, and how retroactive sentence reductions will be calculated.

What Does Amendment 821 Change?

The main thing Amendment 821 does is get rid of the rule that gave defendants a criminal history point just for being on probation, parole, or supervised release when they committed a new offense. This is sometimes called a “status point.”

Lots of critics said giving status points wasn’t fair, because it punished people more for things unrelated to the actual crime they committed. Amendment 821 agreed, so now defendants don’t automatically get a status point added anymore.

Amendment 821 also changes some of the rules about getting criminal history points for older sentences. The changes basically make it so old convictions expire sooner and don’t count against defendants as much.

To get a reduction under the retroactive part of Amendment 821, you have to meet a few conditions:

• You must have been sentenced before November 1, 2023 when the changes took effect.
• Applying the new criminal history rules has to actually lower your guideline range. If your range stays the same, you’re out of luck.

This change will primarily benefit inmates who were convicted of lower-level drug offenses or white collar crimes. For those groups, Amendment 821 retroactivity could result in reductions of months or even years off their sentences.

Who Is Eligible for a Reduced Sentence?

The Sentencing Commission estimates around 7,272 currently incarcerated individuals will be eligible for relief under Amendment 821 retroactivity. However, the amendment does NOT apply to inmates who:

• Were convicted of serious violent felonies
• Are classified as career offenders or armed career criminals
• Have prior “crime of violence” convictions
• Have convictions under federal firearms laws

The bottom line is that we are now on a path where thousands of inmates will see their sentences get cut starting February 1st, 2024. Expect a lot of activity in the courts and prisons over the next 6 months as they gear up for this major change.

How Will Retroactive Sentence Reductions Be Calculated?

Figuring out exactly how much time an inmate will get reduced under Amendment 821 retroactivity involves a few steps:

1. The court has to recalculate their criminal history points and guideline range using the new rules.
2. If the new range is lower, the judge can then reduce their sentence accordingly.
3. However, the new sentence can’t go below the minimum of the revised range.
4. Also, no sentence can be reduced by more than 25% or 2 years, whichever is less.

Let’s look at a quick example to see how this works:

John Doe’s original sentence:

• Convicted of drug trafficking
• Criminal history points: 7
• Guideline range: 57-71 months
• Sentenced to 64 months in prison

Under Amendment 821 retroactivity:

• Criminal history points: 5 (status point removed)
• New guideline range: 46-57 months

Since the bottom of the new range is 46 months, John Doe’s sentence can be reduced to that amount. That comes out to an 18 month reduction off his original 64 month sentence.

The courts and Bureau of Prisons have a lot of work ahead processing potentially thousands of retroactive sentence reduction orders like this. Expect some delays and inconsistencies as they deal with the influx.

What Should You Do If Eligible?

If you think you may qualify for a lower sentence under Amendment 821 retroactivity, here are some steps to take:

• Contact your criminal defense lawyer, or get a consultation with a lawyer who specializes in post-conviction relief.
• Have them review your criminal history and determine if the amendment would actually lower your range.
• If so, have them file a motion for a sentence reduction order based on the retroactive application of Amendment 821.
• Keep in mind that courts will not start granting reductions until February 1, 2024 at the earliest.

The bottom line is that certain federal inmates could see their sentences decrease by over a year on average thanks to Amendment 821. But to take advantage, you need to understand if you qualify and get the ball rolling with a lawyer. February 1st will be here before you know it!