Modeling Potential Sentence Reduction Outcomes Under Amendment 821 Retroactivity

Hey there! I wanted to write this article to help explain the recent changes to federal sentencing guidelines under Amendment 821 and what it could mean for people currently incarcerated in federal prisons. This stuff can be really confusing, even for lawyers, so I’ll try to break it down in simple terms.

When the Commission changes the guidelines for how federal sentences get calculated, those changes are usually only for future cases. Making a change “retroactive” means it can apply to sentences that were already handed down under the old rules. So people who were sentenced before Amendment 821 took effect could now be eligible for lower sentences based on the new rules. Their cases can get re-opened for what’s called a “sentence reduction order.”

What Does Amendment 821 Do?

The main thing it does is reduce how much someone’s criminal history counts against them when determining their guideline range. The Commission decided that some ways they used to calculate criminal history points weren’t very good predictors of whether someone will reoffend. So they changed the rules to focus more on serious violent crimes in someone’s past.

For example, under the old rules you could get a criminal history point just for having a prior conviction, even if it wasn’t serious and you didn’t serve any jail time. The new rules get rid of those “status points” so only convictions where you actually went to jail will count. There are some other tweaks too, but basically the Commission decided the old system over-counted minor crimes in someone’s past.

Who Is Eligible for a Sentence Reduction?

The Commission estimates around 20,000 people currently in federal prison could qualify for a resentencing under the retroactive part of Amendment 821. But meeting the basic eligibility criteria is just the first step. Even if you qualify, whether you actually get a reduced sentence is still up to the judge.

Here are the requirements to even be considered:

• You must have been sentenced before June 27, 2022, when Amendment 821 took effect.
• Eliminating the criminal history points affected by 821 has to lower your final guideline range.
• You can’t have a prior crime of violence, sex offense, terrorism, or be a career offender or armed career criminal.

So if you still have a high enough criminal history score without the points 821 takes away, you won’t qualify. But anyone who does meet all the criteria above can file a motion asking the judge to resentence them under the new rules.

How Large of a Sentence Reduction Is Possible?

The Commission estimates the average sentence reduction could be around 14 months for eligible inmates. But some could see even bigger drops. For example, if eliminating the status points takes you from criminal history category VI down to category V or IV, your guideline range could easily go down by several years.

Of course the final decision is up to the judge. They aren’t required to lower your sentence, even if the guidelines change. But judges do tend to follow the recommended ranges closely. One study found that over 80% of sentences fell within the guideline range after Amendment 782 made drug offense changes retroactive. So while a reduction isn’t guaranteed, the odds are strongly in favor if your new range is much lower.

What Is the Process for Seeking a Sentence Reduction Under Amendment 821?

The first step is determining if you’re eligible based on the criteria above. If you are, you can file a motion asking the judge to resentence you under the new guidelines. This has to be done through your attorney if you still have one. You can also request that the court appoint an attorney for your resentencing.

The judge will then review your motion and decide whether to grant a full resentencing hearing. If they agree your new guideline range would be substantially lower, most will hold a hearing. This works much like the original sentencing, with both sides presenting arguments before the judge issues a new sentence.

These hearings are being scheduled on a rolling basis, as judges process the motions. The Commission has said courts can begin holding hearings as soon as February 1, 2024. So eligible inmates will want to file for a reduction as soon as possible.

What Should I Do If I’m Serving a Federal Sentence?

If you may qualify under Amendment 821, take these steps now to pursue a sentence reduction:

• Contact your former defense attorney, or request that the court appoint a new lawyer.
• Have the lawyer review your criminal history and original sentencing to see if you’re eligible.
• If you qualify, have them file a motion for a full resentencing hearing.
• Provide any information you can to help show you’re deserving of a lower sentence.

With up to 20,000 people potentially eligible for relief, federal public defenders are going to be very busy. Be proactive in pursuing resentencing yourself or with the help of a private attorney. Don’t just wait and hope someone notices your case.

The bottom line is Amendment 821 offers real hope for a shorter sentence to thousands of federal inmates. But you have to take action and go through the process if you want the judge to reconsider your case. Use this opportunity to get a fresh look under the new, more lenient guidelines.

What Are the Pros and Cons of Making Amendment 821 Retroactive?

Like any major policy change, there are good-faith arguments on both sides of applying Amendment 821 retroactively. Here are some of the key considerations:

Potential Pros

• Brings sentences more in line with current guidelines and understanding of recidivism predictors.
• Reduces overcrowding and costs for the Bureau of Prisons.
• Provides relief for inmates serving lengthy sentences under outdated rules.
• Increases fairness and perception of legitimacy in federal sentencing.

Potential Cons

• Resentencing burdens judges and prosecutors who may oppose reductions.
• Undermines finality in sentencing, reopening settled cases.
• Early releases could pose risks to public safety in some cases.
• Rewards offenders who committed crimes under old guidelines.

There are reasonable arguments on both sides. The Commission had to weigh these factors carefully before voting to allow retroactivity. Opponents fear softening sentences and releasing dangerous criminals. But proponents point out these are non-violent offenders who likely received excessive sentences under the old rules.

What Comes Next After Amendment 821?

The Commission hasn’t stopped its sentencing reforms with Amendment 821. They also passed Amendment 822, which reduces penalties for certain drug offenses. That one hasn’t been made retroactive yet, but the Commission left the door open to reconsider it in the future.

Congress is considering several bipartisan bills, like the SAFE Act, that would overhaul mandatory minimums and provide broader retroactive relief. With momentum building, we may see more significant changes in the next few years.

For now, Amendment 821 stands to offer real sentence reductions to thousands of federal inmates. Taking advantage of this opportunity requires understanding the eligibility criteria, researching the process, and filing the right motions at the right time. Any federal prisoner who may qualify should be taking steps now to get their case reviewed under the new guidelines.