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Amendment 821

What Is the 821 Amendment?

After several years without a quorum, in 2023, the Sentencing Commission finally made some critical updates to the United States Sentencing Guidelines (USSG), the federal guidelines that judges use in determining sentencing for federal crimes. 

These updates reflect the priorities of the First Step Act. This bipartisan bill called for sweeping changes within the criminal justice system to provide more fairness in sentencing and reduce mass incarceration, among other things. 

What Is the 821 Amendment?
The 821 Amendment can reduce sentence lengths for many inmates in the federal prison system.

One amendment, the 821 Amendment, can potentially reduce sentence lengths for tens of thousands of inmates within the federal prison system

In part, this amendment alters the application of the sentencing guidelines concerning certain offenders who earned criminal history “status points” based on the commission of an offense while serving a criminal sentence or presented zero criminal history points at the time of sentencing. This amendment took effect on November 1, 2023.

Simply put, Amendment 821 is a new law that significantly changes the federal sentencing guidelines. The United States Sentencing Commission passed it on August 31st, 2023. 

Some parts of the amendment apply retroactively starting February 1, 2024. This means some inmates already in prison can get their sentences reduced. This Amendment can also give shorter sentences to people who don't have an extensive criminal record. 

For example, suppose you have zero criminal history points under the sentencing guidelines. In that case, your sentence can be reduced by up to 2 levels, known as the “zero-point offender” adjustment.

It applies if you have no prior convictions or only minor misdemeanor convictions, meaning your sentence could be around 25% shorter than it used to be for the same crime. Let's look at the background of this amendment, what it does, and how it may impact many currently incarcerated. 

What is the First Step Act?

The First Step Act of 2018 called for numerous changes within the federal criminal justice system, and as its name suggests, it represents an important "first step" in sweeping criminal justice reform. 

Among the law's most important provisions are reducing mandatory minimum sentence lengths (mainly for non-violent drug offenses) and establishing a good behavior "credit" system whereby inmates can work actively to reduce their time in prison. 

Many of these changes required changes in the USSG Guidelines by which to implement them. Amendment 821 is one of several amendments reflecting the provisions of this law.

What are the Key Provisions of the 821 Amendment?

Amendment 821 introduces three significant changes to how criminal history is evaluated, thus potentially altering sentencing outcomes for many defendants. 

It helps federal inmates who received high sentences when their crime was not serious. This means you might be able to get your sentence reduced if it is not violent or serious. This Amendment gives federal judges more flexibility to even out unfair sentences. Let's look at these changes more closely.

Key Provisions of the 821 Amendment

Part A: Adjustment of "Status Points" 

Status points are a critical element in the USSG as a metric to gauge the gravity of a defendant's prior criminal history—the more points accumulated due to previous offenses, the harsher the sentencing of the current one. 

The 821 Amendment brings a notable change by reducing status points by one for individuals with seven or more points and eliminating them for those with six points or fewer. This reduction can lead to significantly shorter sentences, as the USSG tables link lower points directly with lesser recommended sentencing ranges.

Part B: Offense-Level Reductions for "Zero-Point Offenders"

This section of the amendment introduces a two-level offense reduction for "Zero-Point Offenders," or those with no prior criminal history. However, this is contingent on the nature of the crime, excluding those with certain aggravating factors. 

Additionally, the amendment offers guidelines on when non-prison sentences might be appropriate for some first-time offenders, potentially diverting them from incarceration altogether.

Part C: Reassessment of Marijuana Possession Sentences

Reflecting the country's evolving view on marijuana use, Amendment 821 introduces language in the sentencing guidelines that allows for past marijuana possession sentences to be considered a mitigating factor when determining current sentences. 

This change acknowledges the shift towards more lenient laws and attitudes regarding marijuana offenses and aims to keep non-violent offenders from accruing excessive sentences.

When Do the Changes Take Effect?

The provisions of the 821 went into effect as of November 1, 2023—meaning they will apply to all offenses committed after that date. 

However, in August 2023, the Commission voted to retroactively make the provisions of Parts A and B (dealing with the point system) for current inmates to reduce sentencing for many already serving time. 

The Commission called for a retroactive 3-month delay in the implementation to February 1, 2024, to provide time for all petitions to be reviewed and preparations to be made, particularly for those who may qualify for early release.

Amendment 821 can be used by many people already in federal prison. As noted, it applies retroactively, meaning current federal inmates can file motions to get their sentences reduced under the new rules. 

What is the Expected Impact of the 821 Amendment?

While the changes will impact all eligible federal cases in the future, the Sentencing Commission believes the retroactive changes will result in sentencing reductions for nearly 20,000 inmates currently housed in the federal corrections system. 

They expect that Part A (reducing the Status Points) will result in an average sentence reduction of 11.7 percent per offense. They believe Part B (the "Zero-Point" initiative) will reduce existing sentences by an average of 17.6 percent.

Are You Seeking a Sentencing Reduction Under the 821 Amendment?

Sentence reductions for current inmates won't be automatic under the 821 Amendment. If you qualify for a lesser sentence or early release, you must file a petition. For the best chances of success, talk to an experienced federal criminal defense attorney who can help you determine your eligibility and file the appropriate petitions on your behalf.

The impact remains to be seen, but Amendment 821 is a substantial shift away from harsh mandatory sentences. It gives federal judges more discretion to impose fair and proportional punishments. 

Further, current federal prisoners serving long terms might be able to secure an early release. For more information, contact our law firm. Eisner Gorin LLP is based in Los Angeles, California.

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